SZDIU v Minister for Immigration and Citizenship

[2007] FCA 1130

FEDERAL COURT OF AUSTRALIA

SZDIU v Minister for Immigration & Citizenship [2007] FCA 1130

SZDIU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 736 OF 2007

EDMONDS J
3 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 736 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDIU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	3 AUGUST 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 736 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDIU
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	3 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal from a judgment of the Federal Magistrates Court (Driver 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’) refusing an application for a protection visa.

   BACKGROUND

2. Details of the appellant’s history and claims together with a summary of the Tribunal’s findings are set out in the reasons of his Honour below.

   THE GROUNDS OF THE APPLICATION BELOW

3. The proceedings in the Federal Magistrates Court were commenced by an application filed on 9 August 2005.  On 1 November 2006 an amended application was filed by the appellant, the grounds of which read as follows:

   ‘1.The Refugee Review Tribunal failed to exercise its jurisdiction under the [Migration] Act:

   Particulars

   A.The Refugee Review Tribunal gives no weight to the following documents that:

   (i)The First Information Report;

   (ii)arrest warrant; and

   (iii)the General Diary lodged by my wife for the recent harm.

   2.The Refugee Review Tribunal acted in excess of its jurisdiction:

   Particulars

   A.The Refugee Review Tribunal acted in excess of its jurisdiction to make the following comment that:

   (i)there is no real chance that the applicant will be persecuted by his alleged political opponents in the BNP or Jammat-e-Islami if he returns to Bangladesh in the foreseeable future.

   3.The decision of the Refugee Review Tribunal is contradictory itself and/or the Honourable Member was confused with the various facts:

   Particulars

   A.The Tribunal has accepted that I was seriously harmed on one occasion because of my political opinion as a supporter of the Awami League.  On the other hand the Tribunal said that this incident was an isolated one and that there is not a real chance that I will be attacked by these assailants in the foreseeable future.

   4.The Refugee Review Tribunal made a wrong assumption on its decision by making the following comment:

   Particulars

   A.There was no evidence to support the Refugee Review Tribunal’s finding that:

   (i)the applicant is a person [not] of high profile within the Awami League, or that he has a high level of commitment to it.’

   THE REASONS FOR JUDGMENT BELOW

4. His Honour dismissed the application for the following reasons:

   (1)The according of weight to be given to the appellant’s documents was a matter for the Tribunal and no jurisdictional error was disclosed in the finding of the Tribunal (at [5] – [6]);

   (2)grounds 2 and 3 sought to attack the decision of the Tribunal on the merits and no lack of logic was disclosed in the Tribunal reasoning (at [7] – [8]);

   (3)the Tribunal’s findings (namely, that it was not satisfied the appellant was a person of high profile within the Awami League, or that he has a high level of commitment to it) were based upon the appellant’s own evidence and were open on the material before it (at [9]).

5. His Honour concluded the decision of the Tribunal was free from any jurisdictional error.

   GROUNDS OF APPEAL

6. The notice of appeal raises precisely the same grounds as those relied upon in the amended application filed in the proceedings below.

   SUBMISSIONS ON APPEAL

7. The appellant filed written submission setting out:

   (1)The relevant factual background;

   (2)his claims before the Tribunal; and

   (3)the Tribunal’s findings.

   He submitted that the Tribunal did not accord him natural justice in not giving any weight to the documents which he put before the Tribunal in support of his claims.  He further submitted that the Tribunal erred in relying on independent country information in raising the question of the authenticity of such documents and that it was incumbent on the Tribunal to investigate that authenticity with the providers of such documents whose contact details appeared on them.  Finally, he submitted that the Tribunal wrongly ‘assumed’ that there was not a real chance that he would be persecuted by the Bangladeshi authorities if he returned to Bangladesh in the foreseeable future.

8. The appellant has not identified any error in the judgment of his Honour below.  In response to the appellant’s written submission, as his Honour below observed, the according of weight to the appellant’s material is a matter for the Tribunal; and the Tribunal is under no obligation to make enquiries as to the authenticity of documents upon which the appellant relies.  Moreover, the Tribunal is entitled to rely on independent country information – that documents submitted by Bangladeshi asylum seekers are often fraudulent – and this was put to the appellant in writing by the Tribunal for response by him.  There is no denial of natural justice in any of this.  The final submission that the Tribunal wrongly ‘assumed’ that there was not a real chance that the appellant would be persecuted by the Bangladeshi authorities if he returned to Bangladesh in the foreseeable future is no more than an attack on the merits of the Tribunal’s decision.

   CONCLUSION

9. The Minister submits that his Honour below was correct to conclude that there was no jurisdictional error in the Tribunal’s decision and that the appeal ought to be dismissed.  I agree.

10. The appeal must be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:       3 August 2007

Solicitor for the Appellant:	The appellant appeared in person
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	30 July 2007
Date of Judgment:	3 August 2007