SZGLC v Minister for Immigration and Multicultural Affairs

[2007] FCA 681

FEDERAL COURT OF AUSTRALIA

SZGLC v Minister for Immigration and Multicultural Affairs [2007] FCA 681

SZGLC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 16 OF 2007

EDMONDS J
10 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 16 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGLC
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	10 MAY 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 16 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGLC
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	10 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal against a judgment of the Federal Magistrates Court (Turner FM) dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) to refuse the appellant a protection visa (class XA). 

   BACKGROUND

2. The appellant is a citizen of Bangladesh.  He arrived in Australia on 15 August 2004 on a visitor’s visa and lodged an application for a protection visa (class XA).  A delegate of the Minister refused the application and the appellant applied to the Tribunal for review of the delegate’s decision. 

3. The Tribunal affirmed the decision of the delegate.  The appellant sought judicial review of that decision in the Federal Magistrates Court, and the matter was remitted to the Tribunal by consent pursuant to an order of Lloyd Jones FM.

4. The appellant was invited to attend a hearing of the Tribunal and did attend a hearing on 6 December 2005.  On 13 December 2005 the Tribunal wrote to the appellant in relation to information that suggested his claim for protection may not be genuine.  On 27 December 2005 the appellant, through his authorised recipient, replied to that letter.

5. On 17 January 2006 the Tribunal made a second decision affirming the decision of the delegate.  The appellant filed an application for judicial review of the second Tribunal decision on 20 February 2006.  On 8 May 2006 the appellant filed an amended application, and a copy of the transcript of the proceedings of the second Tribunal hearing.

6. A hearing was conducted by the Federal Magistrates Court on 20 November 2006 and judgment was delivered on 20 December 2006, dismissing the application with costs.

7. The appellant filed a notice of appeal in this Court on 4 January 2007.

   THE APPELLANT’S CLAIMS

8. Before the Tribunal, the appellant claimed to have a well-founded fear of persecution because of his political opinion as a popular political leader for the Awami League in his district.  He claimed to have been Vice-President of a Committee of the Awami League in his district.  The appellant claimed to have been tortured and persecuted by Bangladesh Nationalist Party (‘BNP’) and Jamaat-e-Islami (the ruling party and its coalition ally respectively) supporters, and threatened by the police who filed false charges against him.  He also claimed that supporters of the BNP tried to kill him.

   IN THE TRIBUNAL

9. The Tribunal was not satisfied that the appellant’s account of his political activities and the harm he claimed to have suffered could be relied upon.  The Tribunal relied upon various matters to reach that conclusion:

   (a)The Tribunal noted the false statements made by the appellant in connection with the appellant’s application for a visitor visa for entry to Australia.

   (b)The Tribunal was ‘not satisfied as to the authenticity of the documents submitted’ in support of the appellant’s protection visa application.

   (c)The Tribunal was not satisfied as to the truth of the appellant’s claims concerning his visit to Nepal and India in May 2004.

   (d)The Tribunal was not satisfied as to the truth of the appellant’s claim that he was in hiding from January to August 2004.

   (e)The Tribunal took into account the appellant’s delay in departing Bangladesh for three weeks after he obtained his visitor’s visa.

10. The Tribunal summarised its conclusions in the following way:

    ‘On the basis of the evidence before it the Tribunal is not satisfied that the applicant was a political leader of the Awami League in his local area as he claims, or that he had any particular profile in Bangladesh.  The Tribunal is not satisfied that he has ever been targeted for his political opinion by the BNP, Jamaat e-Islami, the Police or anybody else in Bangladesh or that he was attacked and hospitalised for this reason.  The Tribunal is not satisfied that false charges have been laid against him or that he is wanted by the Police.  The Tribunal is not satisfied that the applicant’s claims of future harm in Bangladesh have any basis in objective fact.  The Tribunal is not satisfied the applicant has a well-founded fear of persecution because of his political opinion, or for any other Convention-related reason, now or in the reasonably foreseeable future should he return to Bangladesh and is not satisfied that he is a refugee.’

    IN THE COURT BELOW

11. His Honour rejected all the grounds in the amended application and the application. His Honour’s primary rejection of the appellant’s application was that the numerous grounds, in essence, amounted to a claim that the Tribunal erred in rejecting much of the appellant’s evidence. His Honour concluded ‘the Tribunal gave detailed consideration to the applicant’s evidence and formed the view that he was not a credible witness, and that much of his documentary evidence was not authentic: [19]. His Honour then listed the sixteen crucial findings of fact the Tribunal made, concluding that they were ‘all findings of fact which were properly open to the Tribunal’: [21]; and that the Tribunal did not act on evidence that was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable: [22].

12. His Honour then reviewed individually all the grounds of review in the application and the amended application, referring to the appellant’s oral submissions or additions to each ground: [23].

    THE APPEAL IN THIS COURT

13. The notice of appeal filed in this Court contains the following grounds:

    (a)That the Federal Magistrate ‘failed to follow the procedural fairness, natural justice and maintain the applicable law when making the decision’.

    (b)That the Federal Magistrate ‘made an error of law in connection with the making of the decision’.

    (c)That the making of the decision by the Federal Magistrates Court was ‘an improper exercise of its power conferred by the enactment’.

14. As against the Federal Magistrate these grounds of appeal are meaningless.

15. Even assuming that the appellant refers to the Federal Magistrate’s errors as a ‘failure to find that the Tribunal failed to follow procedural fairness’ etc., the basis of any of these grounds of appeal is impossible to discern without particulars.

16. His Honour reviewed the decision of the Tribunal and identified the factual bases which the Tribunal relied upon to reach the decision it did.  Each of those findings his Honour concluded were open to the Tribunal on the material before it.  In addition, addressing the particular grounds, his Honour concluded, inter alia, that there had been no breach of s 424A of the Migration Act 1958 (Cth).­

17. His Honour did not err in concluding that the appellant had failed to make out any ground of review in his application for review to the Federal Magistrates Court nor in concluding that there was no jurisdictional error in the decision of the Tribunal.

    CONCLUSION

18. The appeal must be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:        9 May 2007

Counsel for the Appellant:	The appellant appeared in person
Counsel for the First Respondent:	Ms K Morgan
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	4 May 2007
Date of Judgment:	10 May 2007