SZIZX v Minister for Immigration and Citizenship

[2007] FCA 1771

FEDERAL COURT OF AUSTRALIA

SZIZX v Minister for Immigration and Citizenship [2007] FCA 1771

SZIZX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1848 OF 2007

LANDER J
22 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1848 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIZX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE OF ORDER:	22 NOVEMBER 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 1848 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIZX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LANDER J
DATE:	22 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from an order of a Federal Magistrate made on 24 August 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 6 April 2006 and handed down on 2 May 2006.  In that decision, the Tribunal affirmed a decision of the Minister’s delegate to refuse to grant a protection visa to the appellant.

2. The appellant was born on 1 March 1978 and is a citizen of Bangladesh.  He arrived in Australia on 19 February 2004.  The appellant entered Australia as crew on board a ship which he deserted when it docked in Fremantle.  On 15 March 2004 he applied for a Protection (Class XA) visa.  On 18 June 2004 a delegate of the first respondent refused his application.  On 13 July 2004 the appellant lodged an application for review with the Tribunal.  On 7 December 2004 the Tribunal affirmed the delegate’s decision not to grant a protection visa.  The appellant applied to the Federal Magistrates Court for a judicial review of the Tribunal’s decision.  On 21 December 2005 orders were made in the Federal Magistrates Court by consent remitting the matter to the Tribunal for further consideration according to law.

3. The appellant submitted a statutory declaration to the Tribunal.  He claimed that although he had been born into the Islamic religion, he had formed a relationship with a Hindu woman and commenced a de facto relationship with her.  He said his relationship with his de facto wife had not been accepted by their families and fundamentalists had become very aggressive.

4. He said that he attended the Hindu temple with his partner and mixed with other Hindus.  He attended their religious festivals and he had lent towards the Hindu religion, all of which had aggravated the situation further.

5. He said that if he were obliged to return to Bangladesh it would be very hard for him to maintain his relationship with his partner.  He would be ostracised, harassed and banned from all activities in society and it would not be possible for him to lead a normal life.  He feared that the fundamentalist groups would force him to break off his relationship and would cause him harm.

6. He said that his relationship with his partner was continuing, although at a distance.  He telephoned her occasionally and she sometimes telephoned him.  He described their relationship as one of engagement.  His family had expelled him because of his relationship with his partner.  He had been threatened by local people in Bangladesh because of his relationship and been threatened that he would be killed.  He said he and his partner attempted to marry on 15 August 2003 but he had been beaten.

7. He also said that both he and his family were members of the Awami League and that his life would be in jeopardy as a result of his political opinion if he were to return to Bangladesh.

8. The appellant had also said to the first Tribunal that since the government had changed in Bangladesh his problems had become more serious but in respect of that he said, “[t]he problem was not with the political thing, the problem was with the religious thing.”

9. In support of his application before the Tribunal, the appellant produced a document faxed from Bangladesh on 13 February 2005 which purported to certify that the appellant “has been assimilated with our Hindu society and announced Hindu religion.”  The appellant tendered three volumes of a document entitled “Rape of a Nation” which was published by the Awami League in June 2002 which purported to outline abuses by the Bangladesh Nationalist Party (BNP) and the Jamat-e Islami Party since the change of government in October 2001 and other documents consisting of press reports, editorials and letters concerning attacks on minorities in Bangladesh.

10. Following the hearing the Tribunal wrote to the appellant in compliance with s 424A of the Migration Act 1958 (Cth) (the Act) identifying four separate matters which the Tribunal considered demonstrated inconsistencies on the part of the appellant. The matters addressed in the letter were:

    (1)       the appellant’s claim that he had converted to Hinduism;

    (2)conflicting details of the appellant’s claim of his relationship with a Hindu girl and when the relationship began and whether he was, as he was reported to have said, married or not;

    (3)his claim that he was a supporter of the Awami League as a result of which he would suffer persecution and his statement to the Tribunal that “the problem was not with the political thing, the problem was with the religious thing”; and

    (4)the similarity between the appellant’s statement, which he told the Tribunal was all in his own words and the statement of another applicant who had been represented by the same migration agent as the appellant and whose statement had been submitted in 2001.

11. The appellant did not respond to the Tribunal’s letter.

12. The Tribunal did not accept that the appellant was a witness of truth and therefore did not accept his evidence about his past experiences in Bangladesh.  In particular, it did not accept that he had a relationship of any kind with a Hindu girl or that he had converted to the Hindu religion, or that it was perceived by any person that he had converted to the Hindu religion.  The Tribunal did not accept that the appellant or any member of his family was involved with the Awami League or its student wing, the Chartra League or that the appellant feared that he would be persecuted for his and his family’s claimed involvement in the Awami League.

13. The Tribunal concluded that the claims which the appellant made in support of his application for a protection visa were fabricated.  It did not accept that if the appellant were to return to Bangladesh now or in the reasonably foreseeable future, there was any real chance that he would be persecuted for reasons of his real or perceived religious beliefs, political opinions or for reasons of his membership of any political social group, or any Convention reason.

14. An application, which was subsequently amended, was made to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  First, it was complained that the Tribunal had constructively failed to exercise its jurisdiction because there was no evidence to support the Tribunal’s finding that the appellant’s claims were fabricated.  Secondly, it was claimed that the Tribunal acted in excess of its jurisdiction by finding that his evidence was given in an attempt to provide justification for the obvious contradictions in earlier evidence.  Thirdly, it was claimed that the appellant was denied procedural fairness in that the Tribunal found that the submission to the Tribunal was not all in the appellant’s words and that the statement was, in significant parts, almost identical or identical with a previous application.

15. The Federal Magistrate dismissed the application which has given rise to this appeal.  There are three grounds of appeal.  First, that the Tribunal constructively failed to exercise its jurisdiction under the Act.  The particulars given on the notice of appeal are different to those on the application for judicial review.  On the appeal, it is claimed that the Tribunal failed to have regard to documents which were submitted in support of the appellant’s claim.  Secondly, it is claimed that the Tribunal imposed “wrong test to assess my credibility”.  The particulars given are that there was no evidence to support the Tribunal’s finding.  Thirdly, it is claimed that the Tribunal “failed to realise the reality question that it was required to do”.  That ground is particularised by reference to the Tribunal’s finding that there was no real chance that the appellant would be persecuted for reasons of his membership of the particular social group constituted by his family if he were to return to Bangladesh now or in the reasonable future.

16. None of the grounds identify any error made by the Federal Magistrate and in that regard do not constitute grounds of appeal.  The three grounds are no more than an application to this Court to set aside the Tribunal’s clear findings that the appellant’s claims must be rejected as being fabricated.

17. I agree with the submission made by the first respondent’s counsel Ms Clegg that this appeal is a complaint about outcome, not process.  There was a considerable body of evidence before the Tribunal which allowed the Tribunal to make the findings that it did.  The adverse findings made by the Tribunal were fatal to the outcome of the appellant’s application before the Federal Magistrate and on this appeal.

18. The appellant cannot ask this Court or indeed the Federal Magistrates Court to embark upon a merits review of the Tribunal’s decision.

19. I have read the Court Book and considered the processes adopted by the Tribunal and read its reasons to attempt to identify any error in its processes which would amount to jurisdictional error.  I am unable to discern any such error.  Counsel for the first respondent undertook the same exercise, she said, with the same result.

20. The appeal must be dismissed.  The appellant must pay the first respondent’s costs.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

Associate:

Dated:        22 November 2007

Counsel for the Appellant:	Appellant appeared in person
Counsel for the First Respondent:	Ms L Clegg
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	13 November 2007
Date of Judgment:	22 November 2007