SZKAG v Minister for Immigration and Citizenship

[2007] FCA 1720

FEDERAL COURT OF AUSTRALIA

SZKAG v Minister for Immigration and Citizenship [2007] FCA 1720

SZKAG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1118 OF 2007

TAMBERLIN J
8 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1118 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKAG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	8 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The appellant pay the costs of the first respondent in an amount fixed at $900.00.

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 1118 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKAG
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE:	8 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a decision of Federal Magistrate Cameron, given on 29 May 2007.  The Federal Magistrate refused an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”), which had refused the applicant’s application for a protection visa.  The learned Federal Magistrate concluded that none of the matters put before the Court demonstrated jurisdictional error on the part of the Tribunal.  The application for leave to appeal was filed on 19 June 2007, along with an affidavit sworn by the applicant, attaching a draft Notice of Appeal, which sets out broad general grounds.  In addition, when the matter came on for hearing before me, the applicant filed some written submissions.

2. These submissions did not go to or raise any questions of law which would form any basis for concluding that the decision of the Federal Magistrate was erroneous, or that the Tribunal had fallen into jurisdictional error.  The applicant informed me that she is pregnant, unable to obtain work, and could not afford legal representation before the Court or below. 

3. I have read and considered the decision of the Tribunal, which was the subject of the application before his Honour below.  The applicant relied on the association of her family and herself with the Awami League as the basis for her application.  I note that the essential reason the application for review was refused by the Federal Magistrate was because the Tribunal did not accept the evidence given by the applicant, and gave detailed reasons as to why this was so.  In particular, although it accepted some of the applicant’s evidence, the Tribunal noted that there was no country information which suggested that persons who vote in support of the Awami League are persecuted by their political opponents for that reason alone, and did not accept that the applicant would face harm for this reason if she returned to Bangladesh.  Furthermore, the Tribunal did not accept that the applicant faced threats of harm on the final matter advanced by her, namely, harm from her husband’s family.

4. The Tribunal also found her evidence to be inconsistent, determining that she was unable to give details about the threats of extortion or physical harm allegedly made against her.  The Tribunal found that the applicant gave evidence in an evasive manner, and her that her recount of events was implausible.  The Tribunal did not accept that members of her family were hostile to her because she did not hold a religious belief.  Ultimately, the case before the Tribunal was determined on the basis of the applicant’s credibility.  

5. Such a determination, except in the most exceptional circumstances, is solely within the responsibility of the Tribunal as it raises a question of fact.  It does not raise any question as to legal principle or jurisdictional error, and therefore cannot be the subject of review by this Court.  Accordingly, I dismiss the application for leave to appeal as I do not consider that any sufficient doubt has been thrown on the judgment of the Federal Magistrate or the Tribunal.  Moreover, I do not consider, having regard to the material before me, that any injustice would accrue if the appeal were dismissed.

6. Finally, I order that the amount of costs payable by the applicant in this matter be fixed at $900, rather than going to the expense and delay of a taxation.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:       9 November 2007

Counsel for the Respondent:	H. Blackman
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	8 November 2007
Date of Judgment:	8 November 2007