SZDKW v Minister for Immigration and Citizenship

[2007] FCA 750

FEDERAL COURT OF AUSTRALIA

SZDKW v Minister for Immigration & Citizenship [2007] FCA 750

SZDKW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2524 OF 2006

MARSHALL J
16 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2524 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDKW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	16 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent is amended to “Minister for Immigration and Citizenship”.

2.The appeal is dismissed.

3.The appellant pay the first respondent’s costs of the appeal.

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 2524 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDKW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	16 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant appeals from a judgment of the Federal Magistrates Court.  The Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’).  The Tribunal had affirmed a decision of a delegate of the first respondent Minister that the appellant was not entitled to a protection visa. 

2. The appellant is a citizen of Bangladesh.  He claimed that he feared persecution if returned to Bangladesh in the reasonably foreseeable future on account of his political opinion as a member of the Awami League. 

3. A delegate of the Minister rejected the appellant’s application for a protection visa.  The delegate found that political violence was widespread in Bangladesh and that merely belonging to an opposition political party does not attract persecution.  The delegate also said that the appellant could relocate in Bangladesh.          

4. The appellant sought merits review before the Tribunal.  The Tribunal affirmed the delegate’s decision, but the Tribunal’s decision was quashed by consent following the judgment of the High Court in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 215 ALR 162. The matter was remitted to a differently constituted Tribunal which also affirmed the delegate’s decision. The Court below dismissed an application for judicial review of that decision.

5. Below, I only consider so much of the material which was before the Tribunal as is necessary to deal with the points raised by the appellant before the Federal Magistrate and the additional point contained in the notice of appeal.   

6. Before the Federal Magistrate, the appellant submitted there was no evidence to support the Tribunal’s finding that two documents referred to as “First Information Reports” were not genuine. 

7. The Federal Magistrate said in his Honour’s reasons for judgment (see SZDKW v Minister for Immigration & Multicultural Affairs [2006] FMCA 1922) at [25]:

   The Tribunal referred to the specific claims made by the [appellant] and considered documents which purported to be First Information Reports in relation to two false charges.

8. At [26], his Honour noted that the Tribunal did not accept that the police had laid false charges against the appellant because his claims in that regard “…were inconsistent with the [appellant’s] conduct in relation to his travel, firstly to India and back to Bangladesh, and then when delaying his departure for Australia”.

9. In addressing the appellant’s claim about there being no evidence to support the finding that the First Information Reports were not genuine, the Federal Magistrate said at [32]:

   In my opinion, it was open to the Tribunal to give this material the diminished weight which it identified, as a result of its inference from the [appellant’s] travel.  In effect, the Tribunal assessed the [appellant’s] motivations for coming to Australia, and preferred an explanation which did not include the fears of persecution which were claimed.  I consider that this reasoning was open to the Tribunal.

10. By repeating the ground dealt with by the Federal Magistrate above in the notice of appeal, I take the appellant as alleging error in his Honour’s treatment of that issue.  I can discern no such error.  As his Honour correctly points out, it was open to the Tribunal not to place weight on the First Information Reports alleging charges against the appellant when there was evidence before the Tribunal, such as the evidence relating to the appellant’s travel, which was inconsistent with charges having been laid.  This was a matter of fact for the Tribunal to determine.  No jurisdictional error on this issue has been identified by the appellant.

11. The Tribunal accepted that the appellant was involved with organisations in Bangladesh, including the Crime Resistance Committee and the Bangladesh Human Rights Commission.  At p 23 of its reasons for decision the Tribunal said:

    …I do not accept that there is a real chance that the [appellant] will be persecuted for reasons of his involvement in the social welfare organisation ‘Dhumketu’ or in the ‘Crime Resistance Committee’ or ‘Terrorism Protection Committee’ if he returns to Bangladesh…

    Later, also at p 23 of its decision, the Tribunal formed the same view with respect to the appellant’s involvement with the Bangladesh Human Rights Commission. 

12. Before the Court below, the appellant contended that there was no evidence to support that finding.  He also submitted that the finding of his involvement with the organisations mentioned above was inconsistent with a finding that he would not be persecuted on account of his involvement with them.

13. In returning to the issues above, his Honour said at [33]:

    …I do not consider that there was any inconsistency or contradiction, between the Tribunal’s acceptance that the [appellant] had been involved in a social welfare organisation and in the Human Rights Commission monitoring committee, and its rejection of his claims to have encountered or feared acts of persecution in the months leading to his departure for Australia.

14. In effect, the Tribunal found that even taking into account the cumulative effect of the appellant’s involvement in all the relevant organisations, there was not “a real chance that the [appellant] will be persecuted for a Convention reason if he returns to Bangladesh now or in the reasonably foreseeable future”.  His Honour below was right to reject the appellant’s submissions that there was no evidence before the Tribunal to dismiss his claims in that regard.  It was a matter for the Tribunal to assess the extent of the appellant’s involvement with the organisations and then to assess whether he had a well-founded fear of persecution on account of that involvement.  No jurisdictional error has been disclosed on this issue and no legal error in the Federal Magistrate’s treatment of the ground of review before his Honour has been established.

15. The appellant contended before his Honour that there was no evidence to support the Tribunal’s finding that the appellant’s return to Bangladesh after travelling to India, and the delaying of his departure for Australia after having been granted a visa, showed that he did not fear persecution in Bangladesh.   His Honour said at [34]:      

    …I consider that the basic reasoning of the Tribunal from the [appellant’s] admitted travel shown in his passport was rational and was open to the Tribunal, as a reason for rejecting the significant claims made by the [appellant] upon which he claimed to fear persecution in Bangladesh if he returned.

16. I agree with that analysis.  It was a factual matter for the Tribunal to assess.  No jurisdictional error has been disclosed in that regard or in his Honour’s treatment of that issue.

17. The notice of appeal raises a further ground of appeal which was not raised below.  The ground states that the Tribunal “misdescribed … as being undated when it in fact was dated” a letter on which the Tribunal relied.  Nothing turns on that point.  It does not show any jurisdictional error.  I refuse leave for it to be raised on appeal as it is unarguable. 

18. In his submissions this afternoon, the appellant sought to attack that part of the reasoning of the Federal Magistrate concerning his Honour’s failure to admit into evidence documents which were not before the Tribunal.  At [40], his Honour said:

    The [appellant] also sought to present further evidence which was not presented to the Tribunal, concerning his trip to India to obtain medical treatment for his son and to establish the factual foundation for a fear of persecution.  However, as I explained to the [appellant], the Court is not able to receive fresh evidence for the purpose of undermining factual conclusions drawn by the Tribunal which were open to it on the material which was before it.

    There is no error in that statement.  I refuse leave for this new argument to be raised.

19. The appeal must be dismissed with costs. 

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        16 May 2007

The appellant represented himself.
Counsel for the First Respondent:	Mr J Smith
Solicitor for the First Respondent:	Blake Dawson Waldron
Date of Hearing:	16 May 2007
Date of Judgment:	16 May 2007