SZFIR v Minister for Immigration - [2006] FMCA 1451

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFIR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1451

MIGRATION – RRT decision – Bangladeshi claiming political persecution – disbelieved by Tribunal – reliance by reconstituted Tribunal upon evidence from earlier hearing – no breach of s.424A – no duty to inquire in Bangladesh about court documents – application dismissed.

Migration Act 1958 (Cth), ss.424A(3)(b), 474(1), 476, 476(1)

Azzi v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 48
Minister for Immigration & Multicultural Affairs v SZFDE [2006] FCAFC 142
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73
SZEPZ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 107
SZEPZ v Minister for Immigration & Anor [2005] FMCA 1614
SZGNY v Minister for Immigration & Anor [2006] FMCA 1142
WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225

Applicant:

SZFIR

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1082 of 2006

Judgment of:

Smith FM

Hearing date:

21 September 2006

Delivered at:

Sydney

Delivered on:

21 September 2006

REPRESENTATION

Counsel for the Applicant:

Mr B Zipser

Counsel for the First Respondent:

Ms L Clegg

Solicitors for the Respondents:

Phillips Fox

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $3,700.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1082 of 2006

SZFIR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 11 April 2006 under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 February 2006 and handed down on 14 March 2006. The Tribunal affirmed a decision of a delegate made on 18 May 2004 which refused to grant a protection visa to the applicant.
Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) so that I do not have power to set aside the Tribunal’s decision unless I am satisfied that it was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed nor whether he qualifies for a protection visa.
The present decision of the Tribunal is its second decision. The first decision, handed down on 1 December 2004, was set aside by writs of certiorari and mandamus under consent orders of this Court made on 14 November 2005. Upon the remitter, the reconstituted Tribunal invited the applicant to attend a further hearing, and the present member has prepared a very carefully considered statement of reasons.
Because the two grounds of review relied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read SZFIR v Minister for Immigration and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] FMCA 1451
Decision Date: 21 September 2006

CaseChat Overview and Summary

The applicant, a national of Bangladesh, sought judicial review of a decision by the Refugee Review Tribunal to affirm a delegate's refusal to grant a protection visa. The application was brought under section 476 of the Migration Act 1958 (Cth), which allows for the Court to review the decision of the Tribunal. This was the second decision of the Tribunal; the first decision was set aside by consent orders on 14 November 2005. The applicant, who arrived in Australia in February 2004 on a student visa, claimed to be an activist of the Bangladesh Awami League and sought a protection visa on the basis of a fear of persecution if returned to Bangladesh. The Tribunal's decision was based on an assessment of the applicant's credibility and the likelihood of persecution if returned to Bangladesh.

The primary legal issue before the Court was whether the Tribunal's decision was affected by jurisdictional error. The Court noted that it did not have the power to decide the merits of the applicant's refugee claims or to determine whether he qualified for a protection visa. Instead, the Court's role was limited to reviewing the decision of the Tribunal to ensure it was not affected by jurisdictional error. The applicant argued that the Tribunal had failed to consider evidence of ongoing political violence in Bangladesh and had placed undue reliance on the delegate's assessment of the applicant's credibility. The Court considered whether these arguments identified a jurisdictional error on the part of the Tribunal.

The Court found that the Tribunal had not made a jurisdictional error in its decision. The Tribunal had considered the evidence of political violence in Bangladesh and had provided reasons for its assessment of the applicant's credibility. The Court held that the Tribunal's decision was based on a proper application of the law and that there was no jurisdictional error. The Court dismissed the application and ordered the applicant to pay the costs of the first respondent in the sum of $3,700.

Orders

Orders of the court

The application is dismissed.

The applicant must pay the first respondent’s costs in the sum of $3,700.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This is an application filed on 11 April 2006 under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 February 2006 and handed down on 14 March 2006. The Tribunal affirmed a decision of a delegate made on 18 May 2004 which refused to grant a protection visa to the applicant. Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) so that I do not have power to set aside the Tribunal’s decision unless I am satisfied that it was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s refugee claims should be believed nor whether he qualifies for a protection visa. The present decision of the Tribunal is its second decision. The first decision, handed down on 1 December 2004, was set aside by writs of certiorari and mandamus under consent orders of this Court made on 14 November 2005. Upon the remitter, the reconstituted Tribunal invited the applicant to attend a further hearing, and the present member has prepared a very carefully considered statement of reasons. Because the two grounds of review relied upon by the applicant’s counsel do not challenge how the Tribunal identified and addressed the applicant’s substantive refugee claims, it is unnecessary for me to do more than give a brief outline of the nature of the matter. The applicant is a national of Bangladesh who in February 2004 at the age of 23 arrived in Australia on a student visa. About one month later, on 18 March 2004, he lodged an application for a protection visa assisted by a migration agent. The application contained general claims to fear persecution in Bangladesh as “an activist of Bangladesh Awami League”. A statutory declaration attached to the application claimed that the applicant had held the post of organising secretary in the Awami League youth student branch while at college, and that after leaving college he “joined Awami League and actively worked in Chittagong City”. He claimed to have obtained a post in a branch of that party. He also claimed to have suffered assaults and economic penalties at the hands of BNP thugs and supporters before leaving his country. His statutory declaration referred generally to “the government is filing numerous criminal cases against Awami League leaders and activists”, but did not suggest that he was the subject of such charges. Such a claim was, however, made when the applicant attended a hearing before the Tribunal as initially constituted on 1 November 2004. The present Tribunal said in its statement of reasons that it had “listened to the audio tape of that hearing, and summarises below the key points presented in his oral evidence”. Its summary of the evidence given to the first Tribunal member is an almost exact replication of the summary of the evidence included in the first Tribunal’s statement of reasons. In short, it appears to be largely a “cut and paste” from the earlier decision.