SZJPS v Minister for Immigration and Citizenship

[2007] FCA 818

FEDERAL COURT OF AUSTRALIA

SZJPS v Minister for Immigration and Citizenship [2007] FCA 818

Muin v Refugee Review Tribunal (2002) 190 ALR 601, considered
Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476, referred to

SZJPS AND ORS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 472 OF 2007

TAMBERLIN J
14 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 472 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJPS AND ORS
Appellants

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	14 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed with 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 472 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJPS AND ORS
Appellants

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE:	14 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of a Federal Magistrate given on 6 March 2007, which dismissed an application by the appellant for review of a decision made by the Refugee Review Tribunal (“Tribunal”) on 20 September 2006.  The Tribunal affirmed the decision of a delegate refusing a protection visa. 

2. There are three appellants. They are husband, wife and son but for present purposes only the first named appellant (the husband) made claims which call for consideration.

3. The appeal is based on three grounds.  The first is that the Federal Magistrate failed to find error of law, jurisdictional error or lack of procedural fairness in the Tribunal’s reasons.  A second ground refers to the High Court judgment in Muin v Refugee Review Tribunal (2002) 190 ALR 601. The third ground simply refers to the High Court judgment in Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476.

4. When the matter came on for hearing before the Court the appellant appeared in person with the assistance of an interpreter and without a legal representative.  He made some oral assertions but these were of a general nature and did not raise any substantial argument in support or elaboration of the grounds.  He also relied on a written submission prepared in general terms for him by a friend, but these amounted simply to generalised assertions of grounds and he was unable to point to any specific evidence or make any specific argument to substantiate any of these grounds.

5. The basic claim of the appellant was that he would suffer persecution if returned to Bangladesh on the ground of his religious belief and political persuasion.  In a comprehensive decision, the Tribunal refused to accept the case made by the appellant on the basis of credibility and independent country information.  It found his evidence as given orally to be disjointed and, more importantly, inconsistent.  Reasons were given in some detail by the Tribunal for its conclusions. 

6. In relation to the written submission filed on 11 May 2007, the first ground asserted is actual bias.  This is a difficult ground to substantiate and no significant argument or material was placed before me to support it.  On the face of the reasons given by the Tribunal there is a balanced consideration of the argument.  The appellant was accepted on some grounds and rejected on a number of others.  Letters were written to the appellant by the Tribunal seeking further information and setting out the concerns of the Tribunal.  It is evident that the Tribunal member asked a number of questions of the appellant and put him on notice of its concerns.  These are generally not the actions of a biased decision-maker.  Moreover, the appellant says that the Tribunal did not consider his oral evidence, but it is manifest from the reasons for decision that this evidence was taken into account but evaluated adversely to the appellant. 

7. A second submission was that the Tribunal failed to consider the appropriate test of serious harm.  On its face the judgment does deal with this question and considers the law relating to the degree of seriousness necessary to constitute persecution.  The Tribunal was not satisfied that the problems experienced by the appellant were sufficiently serious to amount to persecution. 

8. In relation to the third ground the Tribunal used general country information (as it was entitled to do) to evaluate the appellant’s case.  There is nothing improper or incorrect in this approach.  It is said that the Tribunal failed to consider Amnesty International information, but no indication was given as to whether such information was before the Tribunal, what it was, or how it was treated. 

9. The next matter raised was an allegation that the wrong test was used in requiring independent evidence.  However, there is no suggestion that independent evidence was necessary. The case really turned on an evaluation of the credibility of the appellant.  There is no indication that too high an onus of proof was imposed.  The appellant suggests orally that he was not given an opportunity to seek documents to support his case, but given the timing of the hearings, he has had ample time within which to gather any appropriate support in the form of documentation or other testimony. 

10. It is also said that the Tribunal left out elements of the claim and did not assess the claim on a cumulative basis.  This is directly contrary to the express statement by the Tribunal that it considered the appellant’s claims individually and cumulatively and there is no reason to suppose that this approach was not taken. 

11. The next ground is concerned with the merits of the Tribunal’s decision and is to the effect that the Tribunal was wrong, acted illogically and failed to give proper weight to three factors.  This does not raise a question of law.  In addition, on the present state of the law, illogicality, even if it were shown, would not amount to an independent ground of review. 

12. Finally, it is said that the Federal Magistrate and the Tribunal erred in not finding that the appellant satisfied the definition of refugee.  This is simply a generalised statement and no indication of any specific error has been asserted.  I should add that in this case there is no evidence of any lack of procedural fairness and the case does not come within the principles enunciated in Muin.  There is nothing pointed to by the appellant to indicate that the reasoning in that case has any application.

13. I have also considered the reasoning of the Federal Court Magistrate who deals with the arguments, some of a different nature, which were advanced before him and I can find no error in that reasoning. 

14. Accordingly for the above reasons the order of the Court in this matter is that the appeal is dismissed with costs. 

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:        28 May 2007

Counsel for the Appellants:	None
Solicitor for the Appellants:	None
Counsel for the Respondents:	Ms R. Francois
Solicitor for the Respondents:	Clayton Utz
Date of Hearing:	14 May 2007
Date of Judgment:	14 May 2007