SZEUA v Minister for Immigration & Multicultural & Indigenous Affairs

Case [2005] FCA 1790

FEDERAL COURT OF AUSTRALIA

SZEUA v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1790

SZEUA v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1738 of 2005

BRANSON J
24 NOVEMBER 2005
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1738 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEUA
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

24 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondents’ costs fixed in the sum of $3000. 


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1738 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEUA
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

BRANSON J

DATE:

24 NOVEMBER 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

  1. The appellant, a citizen on Bangladesh, appeals to this Court from a judgment of the Federal Magistrates Court delivered on 1 September 2005.  By that judgment, the Federal Magistrate dismissed the appellant’s application for judicial review of a decision of the second respondent (‘the Tribunal’) affirming the decision of a delegate of the first respondent (‘the Minister’) to refuse the appellant a protection visa. 

  2. On this appeal being called for hearing at approximately 10.20 am today, the appellant was not in the court room and did not respond when the matter was called outside the court room. The court officer was unable to find the appellant either on level 3 or level 16 of the court building.  I note for the record that the time is now 10.39 am by the Court’s clock and the appellant has still not arrived at Court. 

  3. Counsel for the Minister has invited me to proceed under O 52 r 38A and hear this matter in the absence of the appellant.  I consider it appropriate to do so. 

  4. I have the notice of appeal filed in this Court by the appellant.  I also have the Minister’s careful written submissions which have, in a minor way, been corrected and, also in a minor way, expanded upon by counsel for the Minister. 

    BACKGROUND

  5. The appellant claims to fear persecution in Bangladesh because of his political involvement with the Awami League.  He claims to have been arrested and beaten and to have been threatened by BNP activists because of his activities to oust the BNP government from power.  In 1996, the appellant went to the United Arab Emirates where he resided for some years prior to arriving in Australia.  The appellant claims that since his departure from Bangladesh he has continued to support the Awami League financially and that a number of false cases have been commenced against him and members of his family.

  6. On 25 July 2003 the appellant lodged an application for a protection visa. His application was refused by a delegate of the Minister on 30 September 2003. The appellant applied to the Tribunal for review of the delegate’s decision on 13 October 2003.

  7. On 21 April 2004 the Tribunal affirmed the delegate’s decision to refuse the appellant a protection visa.  The Tribunal considered that the appellant was generally unreliable and overall was not a credible witness. 

  8. The appellant on 10 June 2004 applied to the Federal Magistrates Court for review of the Tribunal’s decision.  Counsel for the appellant asserted before the Federal Magistrates Court that there was jurisdictional error in at least the three of the Tribunal’s findings such that had the error not been made, the result may have been different.  The Federal Magistrate considered that the appellant had not shown any error on the part of the Tribunal. 

    CONSIDERATION

  9. I do not consider it necessary to prepare detailed reasons for decision in the circumstances of this case. 

  10. The notice of appeal essentially seeks to place before this Court the same submissions that were placed before the Federal Magistrate.  The appellant contends that the Tribunal took into account an irrelevant consideration, namely that the appellant could not recall the dates of birth or ages of his children.  The appellant also asserts that the Tribunal’s decision was affected by jurisdictional error as a result of the Tribunal’s failure to take into account any innocent possibilities in relation to the omission of some pages of the appellant’s passport from his protection visa application.  Finally, the appellant contends that the Tribunal decision was affected by jurisdictional error because the Tribunal discounted the evidence in relation to whether the appellant visited Bangladesh in 1998. 

  11. Each of those submissions was considered carefully by the Federal Magistrate.  In my view, perusal of the Federal Magistrate’s reasons for judgment discloses no error affecting his Honour’s consideration of the submissions.  I have additionally given consideration to the Tribunal’s reasons for decision and am satisfied that no error of jurisdiction affecting the decision of the Tribunal can be identified by reference to the Tribunal’s reasons for decision. 

    CONCLUSION

  12. No error has been demonstrated in the decision of the Tribunal or the judgment of the Federal Magistrates Court.  The appeal is dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            8 December 2005

There was no appearance by the appellant. 
Counsel for the Respondent: P Sibtain
Solicitor for the Respondent: Clayton Utz
Date of Hearing: 24 November 2005
Date of Judgment: 24 November 2005
Details
AGLC
SZEUA v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1790
Case
[2005] FCA 1790
Decision Date

CaseChat Overview and Summary

The appellant, Szeua, has filed an appeal against the Minister for Immigration & Multicultural & Indigenous Affairs, challenging the decision to refuse his application for a protection visa. Szeua claims to be a political activist in Bangladesh who fears persecution due to his involvement with the Awami League and his efforts to oust the BNP government. He alleges arrest, beating, and threats from BNP activists. After leaving Bangladesh, he resided in the United Arab Emirates before arriving in Australia, where he applied for a protection visa in 2003. The application was refused by a delegate of the Minister, and the decision was upheld by the Tribunal and the Federal Magistrates Court. The Federal Magistrates Court dismissed the appeal, finding no jurisdictional error in the Tribunal's decision.

The central legal issues in this case revolve around the Tribunal's assessment of Szeua's credibility and the potential jurisdictional errors in its decision-making process. Specifically, Szeua argues that the Tribunal improperly considered his inability to recall the birth dates of his children, failed to account for innocent explanations regarding the omission of pages from his passport, and incorrectly discounted evidence about his visit to Bangladesh in 1998. The Federal Magistrate reviewed these claims and found no jurisdictional error, a conclusion that was also supported by the Tribunal's detailed reasons for decision. The Federal Court judge, after examining the Federal Magistrate's judgment and the Tribunal's reasons, affirmed that no jurisdictional error was evident in the decision-making process.

Upon reviewing the submissions and the decisions of both the Federal Magistrates Court and the Tribunal, the court found no evidence of jurisdictional error. The Federal Magistrate had carefully considered Szeua's claims and determined that there was no basis to overturn the Tribunal's decision. The court further examined the Tribunal's reasoning and found it to be thorough and justified. Consequently, the appeal was dismissed, and the court upheld the Tribunal's decision to refuse Szeua's application for a protection visa.

In conclusion, the appeal was dismissed with costs. The court ordered that Szeua pay the respondents' costs, fixed at $3000. This outcome reflects the court's determination that the Tribunal's decision was free from jurisdictional error and that the Federal Magistrates Court correctly upheld that decision.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellant pay the respondents’ costs fixed in the sum of $3000.

Background

Background to the litigation

I have the notice of appeal filed in this Court by the appellant. I also have the Minister’s careful written submissions which have, in a minor way, been corrected and, also in a minor way, expanded upon by counsel for the Minister. BACKGROUND The appellant claims to fear persecution in Bangladesh because of his political involvement with the Awami League. He claims to have been arrested and beaten and to have been threatened by BNP activists because of his activities to oust the BNP government from power. In 1996, the appellant went to the United Arab Emirates where he resided for some years prior to arriving in Australia. The appellant claims that since his departure from Bangladesh he has continued to support the Awami League financially and that a number of false cases have been commenced against him and members of his family. On 25 July 2003 the appellant lodged an application for a protection visa. His application was refused by a delegate of the Minister on 30 September 2003. The appellant applied to the Tribunal for review of the delegate’s decision on 13 October 2003. On 21 April 2004 the Tribunal affirmed the delegate’s decision to refuse the appellant a protection visa. The Tribunal considered that the appellant was generally unreliable and overall was not a credible witness. The appellant on 10 June 2004 applied to the Federal Magistrates Court for review of the Tribunal’s decision. Counsel for the appellant asserted before the Federal Magistrates Court that there was jurisdictional error in at least the three of the Tribunal’s findings such that had the error not been made, the result may have been different. The Federal Magistrate considered that the appellant had not shown any error on the part of the Tribunal. CONSIDERATION I do not consider it necessary to prepare detailed reasons for decision in the circumstances of this case. The notice of appeal essentially seeks to place before this Court the same submissions that were placed before the Federal Magistrate. The appellant contends that the Tribunal took into account an irrelevant consideration, namely that the appellant could not recall the dates of birth or ages of his children. The appellant also asserts that the Tribunal’s decision was affected by jurisdictional error as a result of the Tribunal’s failure to take into account any innocent possibilities in relation to the omission of some pages of the appellant’s passport from his protection visa application. Finally, the appellant contends that the Tribunal decision was affected by jurisdictional error because the Tribunal discounted the evidence in relation to whether the appellant visited Bangladesh in 1998. Each of those submissions was considered carefully by the Federal Magistrate. In my view, perusal of the Federal Magistrate’s reasons for judgment discloses no error affecting his Honour’s consideration of the submissions. I have additionally given consideration to the Tribunal’s reasons for decision and am satisfied that no error of jurisdiction affecting the decision of the Tribunal can be identified by reference to the Tribunal’s reasons for decision. CONCLUSION

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BRANSON J
Each of those submissions was considered carefully by the Federal Magistrate. In my view, perusal of the Federal Magistrate’s reasons for judgment discloses no error affecting his Honour’s consideration of the submissions. I have additionally given consideration to the Tribunal’s reasons for decision and am satisfied that no error of jurisdiction affecting the decision of the Tribunal can be identified by reference to the Tribunal’s reasons for decision. CONCLUSION No error has been demonstrated in the decision of the Tribunal or the judgment of the Federal Magistrates Court. The appeal is dismissed with costs.

Ratio Decidendi

Legal Principle Established

Established by: BRANSON J

The appellant on 10 June 2004 applied to the Federal Magistrates Court for review of the Tribunal’s decision. Counsel for the appellant asserted before the Federal Magistrates Court that there was jurisdictional error in at least the three of the Tribunal’s findings such that had the error not been made, the result may have been different. The Federal Magistrate considered that the appellant had not shown any error on the part of the Tribunal. CONSIDERATION I do not consider it necessary to prepare detailed reasons for decision in the circumstances of this case. The notice of appeal essentially seeks to place before this Court the same submissions that were placed before the Federal Magistrate. The appellant contends that the Tribunal took into account an irrelevant consideration, namely that the appellant could not recall the dates of birth or ages of his children. The appellant also asserts that the Tribunal’s decision was affected by jurisdictional error as a result of the Tribunal’s failure to take into account any innocent possibilities in relation to the omission of some pages of the appellant’s passport from his protection visa application. Finally, the appellant contends that the Tribunal decision was affected by jurisdictional error because the Tribunal discounted the evidence in relation to whether the appellant visited Bangladesh in 1998. Each of those submissions was considered carefully by the Federal Magistrate. In my view, perusal of the Federal Magistrate’s reasons for judgment discloses no error affecting his Honour’s consideration of the submissions. I have additionally given consideration to the Tribunal’s reasons for decision and am satisfied that no error of jurisdiction affecting the decision of the Tribunal can be identified by reference to the Tribunal’s reasons for decision. CONCLUSION No error has been demonstrated in the decision of the Tribunal or the judgment of the Federal Magistrates Court. The appeal is dismissed with costs.