SZGNE v Minister for Immigration and Citizenship

[2008] FCA 1353

FEDERAL COURT OF AUSTRALIA

SZGNE v Minister for Immigration and Citizenship [2008] FCA 1353

SZGNE and SZGNF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 865 OF 2008

NORTH J
18 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 865 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGNE
First Appellant

SZGNF
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	18 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        That the appeal is dismissed.

2.        That the appellants 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 865 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGNE
First Appellant

SZGNF
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	18 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an appeal against a decision of the Federal Magistrates Court delivered on 23 May 2008: SZGNE & Anor v Minister for Immigration & Anor [2008] FMCA 586. The Federal Magistrate dismissed an application for review of the decision of the Refugee Review Tribunal (the Tribunal) which was signed on 7 August 2007. The Tribunal affirmed the decisions by the delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister) not to grant protection visas to the appellants. The appellants are husband and wife who are citizens of Bangladesh who claim to be Ahmadi Muslims and claim that in that capacity they feared persecution. The appellants in their visa application relied on certain acts of persecution against the appellant wife to support those claims.

2. The reasons for judgment of the Federal Magistrate are clear and comprehensive. The Federal Magistrate first referred to the background facts of the application by reference to the decision of the Tribunal and then summarised those background facts at [8]. In a methodical way, the Federal Magistrate set out the proceedings at the first Tribunal hearing, and then the various stages before the second Tribunal. The Federal Magistrate summarised the reasons for the Tribunal’s decision at [26]. This summary of the background facts, the proceedings before the Tribunals and the second Tribunal’s decision in the Federal Magistrate’s reasons should be considered to be incorporated into these reasons. Accordingly, it is unnecessary for the Court to repeat them for the purpose of this judgment.

3. The Federal Magistrate then set out the nature of the challenge made before him by the appellant and dealt with each of the arguments on appeal at [29] – [44] of his reasons.  The particular attack mounted by the appellants in the Federal Magistrates Court essentially concerned the evidence submitted by the appellants to establish that they were Ahmadis.  The Federal Magistrate concluded that the evidence did not satisfy him that the appellants were Ahmadis.  I can find no error in the reasoning of the Federal Magistrate in dealing with the arguments on appeal. 

4. The notice of appeal to this Court is general in its terms and reads as follows:

   1.The Second Respondent made a jurisdictional error in deciding the claim of the Appellants and the Federal Magistrate made an error of law by not finding this. Particularly the Second Respondent was bias and made inappropriate finding in making the decision.

   2.The Federal Magistrate made error of law by not finding that the Second Respondent made jurisdictional error in making a decision in close minded [sic].

   3.The Second Respondent made a jurisdictional error in making a decision which contradicts.

5. To the extent that this notice of appeal calls into question the reasoning of the Federal Magistrate the grounds cannot be sustained.  As the Federal Magistrate held, the Tribunal gave reasons which were rational for rejecting the evidence submitted by the appellants that they were Ahmadis.  In particular, the Tribunal had before it a letter from the Ahmadiyya Muslim Association of Australia (AMAA), the peak body in Australia representing Ahmadi Muslims, which it preferred over a letter submitted by the appellants purporting to be from an Ahmadi congregation in Bangladesh.  The letter from the AMAA stated that the organisation had received advice from the relevant Ahmadi organisation in Bangladesh that the appellant wife was not Ahmadi.  The Tribunal gave reasons why it accepted the AMAA as a preferable source of information about the Ahmadi community. 

6. The appellant wife appeared on the hearing of the appeal and made short oral submissions in support of her appeal.  She said there were approximately 600,000 Ahmadis in Bangladesh.  She contended that it would be impossible for the Bangladeshi Association of Ahmadis to know whether she was a member or not.  It is clear from this submission that the appellant’s central contention is that the Tribunal erred in fact.  It is not clear that the Tribunal did so err, but even if it had it would not ground a proper challenge to the decision of the Tribunal. 

7. The appellant wife in reply referred to the lack of security in Bangladesh and asserted that she would be attacked as she had been in the past.  She referred to the fact that she had a child who was born in this country and that even if the Court did nothing for her, it should make a decision in favour of her child.

8. The humanitarian considerations which might be attracted by the position of the appellant’s child are outside the purview of argument on this appeal.  Neither the written grounds of appeal nor the oral submissions made in support of the appeal establish any jurisdictional error by the Tribunal or any error by the Federal Magistrate. 

9. Consequently, the appeal must be dismissed.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:        3 September 2008

Counsel for the Appellants:	The first appellant appeared in person and on behalf of the second appellant
Counsel for the First Respondent:	Mr G Kennett
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	18 August 2008
Date of Judgment:	18 August 2008