SZJNB v Minister for Immigration and Citizenship

[2008] FCA 775

FEDERAL COURT OF AUSTRALIA

SZJNB v Minister for Immigration & Citizenship [2008] FCA 775

MIGRATION – consideration of grounds of appeal contending that a Federal Magistrate fell into error by failing to find jurisdictional error on the part of the Refugee Review Tribunal

Migration Act 1958 (Cth)

NAHI v MIMA [2004] FCAFC 10
Applicant NABD of 2002 v MIMA (2005) 216 ALR 1
NBKT v MIMA (2006) 156 FCR 419
MIEA v Wu Shan Laing (1996) 185 CLR 259

SZJNB, SZJNC, SZJND, SZJNE v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD251 OF 2008

GREENWOOD J
14 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD251 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJNB
First Appellant

SZJNC
Second Appellant

SZJND
Third Appellant

SZJNE
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	14 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The first and second appellants shall pay the costs of the first respondent of and incidental to the appeal to be taxed or otherwise agreed.

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	NSD251 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJNB
First Appellant

SZJNC
Second Appellant

SZJND
Third Appellant

SZJNE
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GREENWOOD J
DATE:	14 MAY 2008
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an appeal from orders of Orchiston FM in SZJNB & Ors v The Minister of Immigration & Citizenship & Another (2008) FMCA 100 dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) of 5 September 2006 and handed down on 19 September 2006 affirming a decision of a Delegate of the first respondent to refuse the grant of a Protection Visa under the Migration Act 1958 (Cth) (‘the Act’) to the appellants both in respect of the applications by the first and second appellants as husband and wife and that of their dependants.

2. The appellants claim to be citizens of Bangladesh who arrived in Australia on 15 February 2006 and applied to the Department of Immigration and Multicultural Affairs for a Protection Visa on 22 March 2006. The Minister’s Delegate decided to refuse the grant of the visa on 19 May 2006 and notified the appellants of the decision and their review rights by letter dated 19 May 2006. The Delegate refused the visa application as in the Delegate’s view, the applicants were not persons to whom Australia owed protection obligations under the Refugee Convention and thus under the Act.

3. According to the Protection Visa application, the male appellant is 37 years old.  He has a wife and two sons who are included in the application.  The appellants, husband and wife, say they were born in Dhaka, Bangladesh.  The male appellant says that he belongs to the Bengali Ethnic Group and his religion is Hindu.  The male appellant travelled to Germany, Malaysia and Switzerland in 2005 and came to Australia in 2006.  The appellants travelled to Australia on Indian passports issued in 2001 which remain valid until 2011.  Those passports gave their place of birth as Nadia for the husband and Calcutta for the wife.

4. The reasons of the Tribunal set out the background information in relation to the circumstances causing the appellants to leave and come to Australia.  Briefly, in a statement lodged by the appellants’ migration adviser, the male appellant says he is a Hindu born in a district of Bangladesh.  His father operated a small grocery shop as well as a transport business.  He said that when his grandfather died there was conflict within the family and the appellant’s father lost his interest in the grocery shop.  The appellant explained to the Tribunal that in 1990 he went to live in Calcutta in India.  The family has resided there since with two children born in India. 

5. The appellants travel on Indian passports and are concerned about the imminent and growing prospect of arbitrary relocation out of India and into Bangladesh of him and his family.  The appellant’s migration adviser told the Tribunal that there is a growing arbitrary program of so‑called return of Bangladesh nationals to Bangladesh regardless of religion.  The male appellant attended a hearing before the Tribunal on 16 August 2006 and was asked a number of questions by the Tribunal to clarify aspects of the appellant’s activities; whether the appellant had been involved in any political movements; the work the appellant undertook; the circumstances surrounding demands made upon the appellant for money consequent upon draft legislation which proposed the deportation of Bangladesh nationals; and other matters.

6. The Tribunal examined the evidence and reached a number of conclusions about the various claims and the circumstances giving rise to the claimed fear of return to Bangladesh.  Those fears essentially went to concern about the religion of the appellants and particularly that of the male appellant as a Hindu, police harassment of the male appellant, lack of social acceptance of Hindus and other matters relating to the business.  The Tribunal in its reasons considered whether serious harm was a prospect on all of the evidence available to the Tribunal. 

7. The Tribunal considered the circumstances of the appellant’s sister who also appeared at the hearing and provided an affidavit.  That material did not support any obvious harassment or persecution in respect of her own circumstances.  The appellant’s brother also gave evidence which failed to support such a conclusion and the evidence of the appellant’s wife put to the Tribunal was found to be evidence “in very general terms”.

8. As a result of all of these matters, the Tribunal was unable to be satisfied that the appellant held a well‑founded fear of persecution for a Convention reason.  The appellant challenged those findings of the Tribunal in proceedings before the Federal Magistrates Court and filed an application which recited a series of grounds of appeal in support of the application.  There were three grounds.  The language of the grounds is internally confusing.  The first ground put to the Magistrates Court was that the Tribunal “failed to internalise the circumstantial grounds of the review application and in weighing both the subjective claims of the review application and in reviewing the huge supporting facts and documents and such has breached sections 426(2), 426(3), 427(4) and 440(2)(b) of the [Migration] Act”. 

9. The second ground contended that the Tribunal failed to pay attention to evidence that was put before the Tribunal, in arriving at its decision. This failure was said to constitute a breach of s 430(1)(c) and (d) of the Act and that such a ground was susceptible of review under s 476(1)(a), (e), (f) and (g) of the Act.

10. The third ground contended that the Tribunal ignored “evidence and its finding in the face of contradicting independent evidence constitutes jurisdictional error being a breach of procedural fairness, which is an essential condition of the exercise of the decision‑making power”. 

11. Federal Magistrate Orchiston considered each of those matters in a careful analysis of each of the three grounds.  There seems to me to be no particular merit in reciting each of the conclusions reached by Orchiston FM on each of these matters.  An analysis of the process of reasoning adopted by the Federal Magistrate fails to reveal any error in the analysis and treatment of the grounds of challenge contended for before the Federal Magistrates Court of Australia.  An assessment of the reasons of the Tribunal against the background of the Federal Magistrate’s reasoning and the disposition of each of those contentions fails in my view to reveal any error on the part of the Federal Magistrate.

12. The appellants appeal to this Court and in doing so have relied upon three grounds.  The first paragraph is a general statement of appeal from the whole of the judgment of Orchiston FM.  The appeal grounds are recited as grounds 2, 3 and 4.  The operative grounds are these: 

    2.The single judge of the Federal Magistrates Court in his Honour’s judgment delivered on 5 February 2008, failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903.

    3.The learned Federal Magistrate has dismissed the case without considering legal and factual errors contained in the decision of the Refugee Tribunal. 

    4.The Federal Magistrate made a legal, factual, and jurisdictional error in not applying the principles laid down by the full court of the Federal Court in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437.

13. A number of things need to be said about these grounds. 

14. The first is that they are placed at the highest level of abstraction possible and fail to coherently state any error on the part of the Federal Magistrate either in the process of reasoning adopted by Orchiston FM or otherwise in reaching the dispositive conclusions reflected in the reasons for judgment.  There seems to be a practice adopted in relation to appeals under s 24 and s 25 of the Federal Court of Australia Act 1976 from decisions of the Federal Magistrates Court of Australia in migration matters, for those assisting otherwise unrepresented appellants to formulate the Notice of Appeal to this Court either at a high level of abstraction or alternatively on the footing that it is appropriate to simply formulate grounds of appeal on the footing that the primary judge fell into error by failing to find the contended error on the part of the Tribunal.

15. This is an entirely unsatisfactory way of formulating grounds of appeal to this Court as a challenge to the decision of the primary judge.  In effect, such an appeal is simply an attempt to, put anecdotally, “have another go” in this Court on the same footing as that below.  The failure to formulate proper grounds would in itself be a basis for dismissing the appeal.  However, of course, the appellant is unrepresented and is assisted by an interpreter.  From the perspective of the appellant, I accept that the approach to this Court is to invite the Court to consider and thus determine whether there is demonstrated error on the part of the Federal Magistrate by failing to properly assess or deal with the contentions of error on the part of the Tribunal. 

16. I do not accept that this is an appropriate way to proceed as a matter of proper principle in isolating properly formulated grounds of appeal to this Court.  However, in terms of seeking to do justice between the parties, I have examined the appeal record to determine whether there are identifiable errors in the reasons of the Federal Magistrate that appear to a supervisory appellate court to warrant intervention even though the grounds of appeal before this Court are flawed. 

17. Having said that, in examining the reasons of the primary judge against the background of the challenge identified in the grounds articulated or identified in the application before the Federal Magistrates Court, I can find no error in relation to any of those matters.  It seems to me that the Federal Magistrate has quite carefully and closely analysed each and every contention including an assessment of the written submissions which were put before the Federal Magistrate in support of the three grounds which were, in themselves, set out in reasonably elliptical terms.  The male appellant claimed to fear persecution for reasons of his religion.  He claimed to fear harm from Islamic fundamentalists.  The Tribunal found that the appellant had not suffered Convention related persecution and on the basis of independent country information rejected the appellant’s claim of a well‑founded fear of persecution in Bangladesh noting that the appellant did not claim to have any political affiliation in Bangladesh.  These findings were open to the Tribunal; involved the interpretation of factual matters before the Tribunal; and are not susceptible of review by the Court (NAHI v MIMA [2004] FCAFC 10 at [11] – [13]; Applicant NABD of 2002 v MIMA (2005) 216 ALR 1 at [8] per Gleeson CJ; NBKT v MIMA (2006) 156 FCR 419 at [81] and [84]; MIEA v Wu Shan Laing (1996) 185 CLR 259 at 272). So the Federal Magistrate correctly found.

18. Although I have given some emphasis to the inadequacy of the Notice of Appeal, I have, in terms of doing justice between the parties, reviewed the reasons of the Federal Magistrate against the background of the reasons of the Tribunal to satisfy myself as to whether there is any error which would justify intervention by this Court.  I am satisfied that there is no such error.  It follows, therefore, that the appeal must be dismissed with costs.

19. The orders will be that:

    1.The appeal is dismissed;

    2.The first and second appellants shall pay the costs of the first respondent of and incidental to the appeal to be taxed or otherwise agreed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        14 May 2008

Counsel for the Appellants:	Appellants – Self Represented
Solicitor for the Appellants:	Appellants – Self Represented
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	The Australian Government Solicitor
Date of Hearing:	14 May 2008
Date of Judgment:	14 May 2008