SZEVE v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 390

FEDERAL COURT OF AUSTRALIA

SZEVE v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 390

SZEVE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 1973 OF 2005

EDMONDS J
18 APRIL 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1973 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEVE
APPELLANT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EDMONDS J

DATE OF ORDER:

18 APRIL 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.        The appellant to 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 1973 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEVE
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EDMONDS J
DATE:	18 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

EDMONDS J:

1. This is an appeal from the Federal Magistrates Court (Lloyd Jones FM) dismissing an application pursuant to s 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the second respondent, the Refugee Review Tribunal (‘the Tribunal’), which affirmed a decision of a delegate of the first respondent (‘the Minister’) to refuse an application for a protection (class XA) visa.

   BACKGROUND

2. The appellant is a citizen of Bangladesh and arrived in Australia on 10 July 2002.  On 8 August 2002, through a migration agent, the appellant submitted an application for a protection visa to the Department of Immigration and Multicultural and Indigenous Affairs (‘the Department’).

3. On 19 November 2002 this application was rejected by a delegate of the Minister.  On 3 December 2002 the appellant applied to the Tribunal for review of the delegate’s decision.

4. On 10 July 2003 the Tribunal wrote to the appellant to inform him that it was unable to make a decision in his favour on the material before it and invited him to a hearing.  The appellant accepted the invitation and, through his migration agent, submitted further documents in support of his claim.  The appellant attended the hearing before the Tribunal and gave evidence.

5. On 10 June 2004 the Tribunal handed down its decision affirming the delegate’s decision not to grant the protection visa.

6. On 6 July 2004 the appellant filed an application pursuant to s 39B of the Judiciary Act in the Federal Magistrates Court. An amended application was filed on 1 December 2004 and a further amended application was filed, with leave, on the day of the hearing, on 1 August 2005. The matter was heard by Lloyd Jones FM on 1 August 2005 and his Honour’s judgment, dismissing the application, was delivered on 30 September 2005.

   THE TRIBUNAL’S DECISION

7. The appellant claims to fear persecution in Bangladesh because of his political affiliation with the Awami League.

8. The Tribunal did not accept that the appellant had a well-founded fear of persecution for reasons of political opinion as a result of the appellant’s experiences in Brunei or Bangladesh up to the time of his departure in February 2002.  In reaching this conclusion, the Tribunal made various adverse findings in relation to the appellant’s credibility relying on material not provided to the Tribunal for the purposes of his Tribunal application.

9. The Tribunal went on to consider the situation in Bangladesh as it existed at the time of its decision and the situation at the time which might prevail in the reasonably foreseeable future.  The Tribunal:

   (1)Accepted the independent information in relation to Bangladesh and concluded that whether or not the Bangladesh Nationalist Party (‘BNP’) or the Awami League remained in power, the country information indicated that some of the systemic problems in the conduct of politics in Bangladesh were changing and such measures should have the effect of reducing the popularity of politically inspired charges; and

   (2)found that the information provided by the appellant portrays a situation ‘more of general lawlessness, than oppression of the appellant’s claimed political party, the Awami League’.

10. In addition, the Tribunal found that, given the combination of the appellant’s language skills, tertiary education, well-off family, overseas work, travel experience, party organisation skills and his low political profile, if any, the chances of the BNP devoting the necessary effort to find the appellant and target him elsewhere in the country are so low as to make them not a realistic claim.  The Tribunal found, therefore, that relocation within Bangladesh was practical for the appellant should he not wish to return to his own area.

    THE DECISION OF THE FEDERAL MAGISTRATE

11. The further amended application for review contained four grounds of review.  In relation to each, his Honour outlined the submissions of the appellant and the Minister and concluded he had been unable to identify any jurisdictional error on the part of the Tribunal.

    NOTICE OF APPEAL

12. The Notice of Appeal contains five grounds of appeal:

    (1) The Federal Magistrate erred in failing to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act;

    (2) the Tribunal breached s 424A of the Migration Act 1958 (Cth);

    (3) his Honour failed to find error of law in the Tribunal decision;

    (4) recent High Court Judgment: Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476;

    (5) recent Federal Court of Australia judgment: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162.

13. On the hearing of the appeal, the appellant appeared in person with the assistance of a Bengali interpreter.  He filed no written submissions and made no oral submissions in support of his grounds of appeal.  Moreover, he indicated that he had not bothered to have the Minister’s written submissions translated for his comprehension.

14. Without particulars, none of the grounds can be sustained.

15. Grounds 2 and 5 indirectly identify an error in the decision of the Tribunal.  Following the Full Court’s decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 6, the Minister conceded the Tribunal made a jurisdictional error in evaluating the appellant’s well-founded fear of persecution without complying with s 424A of the Migration Act. For example, the Tribunal relied on ‘inconsistencies and errors in [the appellant’s] application form’.

16. However, the Minister relied on the finding by the Tribunal on the relocation issue. This alternative basis for the decision of the Tribunal, relocation, is not impugned by any breach of s 424A of the Migration Act: VBAP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 965 per North J.

    CONCLUSION

17. The appeal must be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:             18 April 2006

Solicitor for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Ms Kate Morgan
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	21 March 2006
Date of Judgment:	18 April 2006