SZDCE v Minister for Immigration and Citizenship
[2007] FCA 625
•3 May 2007
FEDERAL COURT OF AUSTRALIA
SZDCE v Minister for Immigration & Citizenship [2007] FCA 625
SZDCE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 165 OF 2007EDMONDS J
3 MAY 2007
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 165 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZDCE
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
3 MAY 2007
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 165 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZDCE
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE:
3 MAY 2007
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal from the Federal Magistrates Court (Smith FM) dismissing an application for review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) to refuse the appellant a protection visa.
BACKGROUND
The appellant is a citizen of Bangladesh who arrived in Australia on 11 August 2003 and lodged an application with the Minister’s Department for a protection visa on 23 September 2003. On 10 October 2003 a delegate of the Minister refused to grant the protection visa and, on 6 November 2003, the appellant applied for a review of that decision.
The Tribunal affirmed the decision of the delegate. That decision was quashed by the Federal Magistrates Court and the matter was remitted back to the Tribunal for consideration according to law.
On 17 February 2006 the appellant was invited by letter to attend a hearing before the Tribunal on 16 March 2006. The appellant attended the hearing and gave oral evidence. On 11 May 2006 the Tribunal made a decision affirming the delegate’s decision.
The application for review of the Tribunal’s decision was filed in the Federal Magistrates Court on 20 June 2006. On 7 September 2006 the appellant filed an amended application. On 19 January 2007 Smith FM dismissed the application: SZDCE v Minister for Immigration & Citizenship [2007] FMC 76.
On 7 February 2007 the appellant filed her notice of appeal in this Court.
APPELLANT’S CLAIMS
The appellant provided details of her claims in her protection visa application and in statements/letters to the Tribunal. She also provided a substantial amount of country information and some allegedly corroborative documentary evidence to the Tribunal. She gave oral evidence at the second hearing.
The appellant claimed she was a women’s and political activist in Bangladesh who had been active in social work and cultural programmes in schools as well as organising political gatherings and meetings. She joined the Awami League students youth group for women whilst in college and was the secretary of the Bangladesh Chattra League during 2000 – 2002. She lived with her boyfriend which resulted in a fatwa being issued against her. As a result of this she and her family were threatened and she received death threats. In April 2003 she was kidnapped and taken to the house of a local Bangladesh National Party leader. There she was raped and video tapes were made of the event. These tapes were later widely disseminated. The social consequences for her and her family were devastating. Her boyfriend disappeared and her father died of a heart attack. She will be persecuted, harassed and either killed or forced to commit suicide if she returns to Bangladesh.
THE TRIBUNAL’S DECISION
Essentially, the Tribunal disbelieved the appellant. The Tribunal:
(a)found the appellant’s oral evidence about her activism to be ‘vague, general, evasive and inconsistent’ (and gave detailed examples and reasons);
(b)noted the appellant lacked knowledge about matters which she should be expected to know about (and gave detailed examples and reasons);
(c)noted that none of the matters identified by the Tribunal would have led to an adverse conclusion about the appellant’s credibility alone but that cumulatively they led the Tribunal to conclude that the appellant was not a truthful witness;
(d)gave no weight to the letters provided by the appellant which purported to corroborate her claim;
(e)did not accept as believable the scenario that the appellant had lived with her boyfriend at her parents’ home and that they had a sexual relationship;
(f)did not accept that the appellant was harmed or persecuted as a result of any women’s or political activities or her relationship with her boyfriend; and
(g)concluded that the appellant would not be subjected to Convention-related persecution in the reasonably foreseeable future.
THE COURT BELOW
Before the Federal Magistrates Court, the appellant raised three grounds, in her amended application, which the court addressed. It also addressed some additional grounds raised in the written submissions of the appellant.
First, the appellant complained that the Tribunal constructively failed to exercise jurisdiction under the Migration Act1958 (Cth) (‘the Act’) in particular as there was no evidence to support the finding that the evidence of the appellant about her activism was vague, general, evasive and inconsistent. His Honour, however, was not persuaded that it was not open to the Tribunal as a matter of law to make findings adverse to the acceptance of the oral evidence of the appellant. The absence of a transcript prevented any substance being given to the first ground and it was, accordingly, rejected.
Second, the appellant complained that the Tribunal acted in excess of its jurisdiction in particular in accepting the inability of the appellant to recall events and in asking irrelevant questions about the Awami League flag. His Honour found there to be no jurisdictional error in the Tribunal not accepting the excuse of the appellant for not being able to respond to questions. In the circumstances, his Honour was satisfied that the appellant was afforded the opportunity for a hearing as outlined in s 425 of the Act. Further, his Honour did not accept that the Tribunal had based its reasoning on irrelevant matters. It was found to be open to the Tribunal to test the appellant’s knowledge of the Awami League flag.
Third, the appellant asserted that she had been denied natural justice and procedural fairness as the Tribunal did not give weight to the letters she had submitted. His Honour considered how the Tribunal dealt with the two letters of reference which were submitted by the appellant as corroboration of her history. His Honour did not accept that the Tribunal did not consider the contents of the letters, nor that its reasoning indicates that it refused to take their contents into account when assessing the evidence as a whole. Rather, his Honour found that the Tribunal adopted an approach of assessing unsworn corroborative evidence against its credibility findings on the appellant’s sworn evidence. This was an approach supported by a Full Court in WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [70]. There was no denial of procedural fairness in failing to warn the appellant it may not accord the evidence any weight as a result of disbelieving the appellant. Moreover, his Honour stated that even if common law principles of procedural fairness had been breached, the provisions of s 422B(1) apply to the present proceedings. There was no breach of s 424A of the Act. His Honour was of the view that the Tribunal’s assessment of the weight which it might give to corroborative evidence given by the appellant to the Tribunal would not come within the concept of ‘information’ covered by s 424A(1), and the evidence itself was excluded from the Tribunal’s duties under s 424A(1) by reason of s 424A(3)(b).
His Honour identified a further problem facing the appellant in her complaints of procedural fairness in relation to the Tribunal’s reasoning concerning the corroborative letters in that, in the absence of a transcript, he was not satisfied that they were not discussed at the hearing in a manner which should have put the appellant on notice that they might not be accepted by the Tribunal.
His Honour went on to consider the additional grounds raised in the appellant’s written submissions. First, the contention that the Tribunal’s finding in relation to the defects in the appellant’s evidence was attended by a failure to comply with s 424A of the Act by reason of the absence of a written invitation to the appellant to comment upon the possibility that the Tribunal might make those findings. However, his Honour concluded that it was clear that the whole of the appellant’s evidence was ‘given to the Tribunal’ within the exclusion of s 424A(3)(b) and that the Tribunal’s reasoning processes in relation to that evidence are not ‘information’ within subs 424(1).
The appellant’s second additional ground was that the Tribunal should have consulted a doctor as to the appellant’s fitness to give evidence, but in his Honour’s opinion the weight of authority he had already referred to, in particular Minister for Immigration & Multicultural & Indigenous Affairs v SLGB (2004) 207 ALR 12 at [43], was clearly to the contrary.
His Honour concluded, after having considered the appellant’s written submissions, that he was not persuaded that any jurisdictional error affecting the Tribunal’s decision was established.
THE APPEAL TO THIS COURT
The notice of appeal raises three grounds of appeal. They are identical grounds to the grounds of review raised in the amended application in the Federal Magistrates Court.
The Minister submits that these are not proper grounds of appeal because they do not assert any error on the part of the court below. In any event, the Minister submitted that there is no discernable error in his Honour’s reasons. The reasons are thorough and comprehensive. His Honour considered all of the grounds of review in the amended application. His Honour also considered whether there might be an issue of the kind recognised in SZBEL v Minister for Immigration & Multicultural Affairs (2006) 231 ALR 592, an additional s 424A ground or grounds such as those raised in the appellant’s written submissions concerning a duty to inquire (i.e., to consult a doctor as to the appellant’s fitness to give evidence).
CONCLUSIONS
I agree with his Honour’s conclusion below that the Tribunal’s decision was not infected with jurisdictional error.
I am also of the view that his Honour’s reasons for dismissing the application do not disclose any appealable error.
The appeal must be dismissed with costs.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 3 May 2007
Counsel for the Appellant: The appellant appeared in person Counsel for the First Respondent: Ms L Clegg Solicitor for the First Respondent: Sparke Helmore
Date of Hearing: 1 May 2007 Date of Judgment: 3 May 2007
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