SZHZY v Minister for Immigration and Multicultural Affairs

[2007] FCA 311

FEDERAL COURT OF AUSTRALIA

SZHZY v Minister for Immigration and Multicultural Affairs [2007] FCA 311

SZHZY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2286 OF 2006

SPENDER J
26 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2286 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHZY
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	26 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed

2.The appellant to pay the first respondent’s costs fixed in the sum of $3,500.

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 2286 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHZY
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE:	26 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Scarlett FM, where his Honour dismissed an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’) who affirmed a decision of the delegate of the first respondent (‘the Minister’) to refuse to grant the appellant a Protection Visa.  The appellant is a citizen of Bangladesh who arrived in Australia on 21 July 2005 and applied for a Protection Visa on 29 August 2005. 

2. The Protection Visa was refused by the delegate on 7 September 2005.   The appellant applied to the Tribunal on 21 September 2005 for review of the delegate’s decision.  After an earlier decision of the Tribunal was set aside by consent, the Tribunal wrote to the appellant on 23 May 2006 inviting him to attend a hearing on 28 June 2006.  The appellant accepted that invitation on 6 June 2006.  However, the appellant did not attend the hearing.  He told the Court today that the reason was he suddenly became quite sick.

3. That explanation does not sit totally consistently with his explanations previously given, but, in any event, the Tribunal proceeded to determine the matter pursuant to s 426A of the Migration Act1958 (Cth) (‘the Act’) as it was entitled to do.

4. The Tribunal had earlier, by a letter of 30 May 2006, written to the appellant pursuant to s 424A of the Act. That letter commences:

   ‘The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason for deciding that you are not entitled to a protection visa…’

5. That letter sets out at some length the matters which the Tribunal said called for its warning.

6. The appellant responded to that letter on 22 June 2006.  The entire letter is set out in the reasons by the Tribunal.

7. The claim of the appellant is that he feared persecution in Bangladesh for reason of his political opinion.  He claimed to be a leading member of the student wing of the Awami League and to have been harmed by members of the Bangladesh Nationalist Party (‘BNP’) in 1996.  He lived in the United Arab Emirates (‘UAE’) from 1998 to 2005, there being two visits to Bangladesh during that period, one in 2002 and one in 2005.

8. He claimed to have been attacked by BNP members during the visit in 2005, when his mother had been injured, and he claims to fear further such harm if he is returned to Bangladesh.  Contrary to a view of the Tribunal that his going to the UAE was in pursuit of money, the appellant to this Court said that he went to the UAE because he feared for his life and he came to Australia only because the renewal of his visa to the UAE was refused. 

9. The basis of the Tribunal’s decision was that the appellant, in its view, was not credible and had fabricated his claims. These views were based on a number of inconsistencies and implausibilities in his claims, about which the Tribunal had written to the appellant in its s 424A letter. The essence of the Tribunal’s finding is expressed in the following passage of its reasons:

   ‘In the light of the inconsistencies and implausibility of his evidence, the Tribunal finds that the applicant has in fact fabricated his claims that he was associated with the Awami League at college, that he was involved in the 1996 election, that he was subsequently injured in a politically motivated attack, that he was threatened subsequent to 1996 and that because of his fear of further attack, he was forced to leave the country for his safety. 

   The Tribunal is strengthened in its finding that he has fabricated his claims by the fact that the applicant according to his own claims was only a minor political activist, while at college.  The Tribunal finds as fanciful that the applicant, allegedly only a minor local political activist, would have been sought continuously by political rivals for almost ten years despite having been out of the country for most of that time.’

10. It is plain that the appellant disputes these findings.  Nonetheless they are findings of fact which were open to the Tribunal to make, and it is no function of this Court to substitute its own findings of fact. 

11. The function of the Tribunal as a finder of fact has been repeatedly affirmed. 

12. The basis of the finding of the Tribunal in this case, being one of credibility, is a finding of fact par excellence.  McHugh J observed in ReMinister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at par 67:

    ‘ … If the primary decision-maker has stated that he or she does not believe a particular witness, no detailed reasons need to be given as to why that particular witness was not believed.  The tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence.  In any event, the reason for the disbelief is apparent in this case from the use of the word “implausible”.  The disbelief arose from the tribunal’s view that it was inherently unlikely that the events had occurred as alleged.’

13. The first ground of the appellant’s appeal to this Court reasserts the claim based on s 424A of the Act which he advanced before the Federal Magistrate. However, the appellant’s appeal does not explain why his Honour was wrong to reject that original claim. There is no identification of any ‘information’ within s 424A(1), which was not excluded by 424A(3), that should have been given in the Tribunal’s s 424A letter.

14. The allegation of breach of procedural fairness also suffers from the want of any particularisation.  There again before this Court has been no particularisation of why it is said his Honour was wrong to reject that ground.

15. The appeal to this Court does not identify any area in which the Federal Magistrate erred by failing to find jurisdictional error by the Tribunal.  Notwithstanding the appellant’s complaints and disagreements as to the findings of fact which the Tribunal made, including the finding as to the purpose of his going to the UAE, no appellable error has been shown in the reasons for judgment of the Federal Magistrate.   

16. In the circumstances, I order that the appeal be dismissed and the appellant pay the first respondent’s costs, which I fix in the sum of $3,500.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender .

Associate:

Dated:        7 March 2007

The Appellant appeared in Person:
Counsel for the Respondent:	Mr T. Reilly
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	26 February 2007
Date of Judgment:	26 February 2007