SZLGH v Minister for Immigration and Citizenship

[2008] FCA 723

FEDERAL COURT OF AUSTRALIA

SZLGH v Minister for Immigration and Citizenship [2008] FCA 723

Migration Act 1958 (Cth), s 420A

SZLGH v Minister for Immigration & Citizenship [2008] FMCA 187 considered

SZLGH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 330 OF 2008

WEINBERG J
20 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 330 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLGH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WEINBERG J
DATE OF ORDER:	20 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs, to be taxed in default of agreement.

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 330 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLGH
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WEINBERG J
DATE:	20 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Orchiston FM dismissing an application for review of a decision of the Refugee Review Tribunal (“the RRT”).  The RRT affirmed a decision of a delegate of the respondent Minister to refuse the appellant a protection visa.

   PROCEDURAL BANKGROUND

2. The appellant, a citizen of Bangladesh, arrived in Australia on 22 January 2007.  On 27 February 2007 the then Department of Immigration and Multicultural Affairs (“the Department”) received an application for a protection visa from the appellant.  On 26 April 2007 a delegate of the Minister refused that application.

3. On 8 May 2007 the RRT received an application for review of the delegate’s decision.  On 13 June 2007 the appellant attended a hearing before the RRT.  On 19 July 2007 the RRT affirmed the delegate’s decision.

4. On 3 September 2007 the appellant filed his application for judicial review in the Federal Magistrates Court.  On 22 February 2008 Orchiston FM dismissed the application: SZLGH v Minister for Immigration & Citizenship [2008] FMCA 187. On 10 March 2008 the appellant filed a notice of appeal to this Court.

   THE APPELLANT’S CLAIMS

5. The appellant set out his claims in his protection visa application.  The RRT  accurately summarised those claims, together with the claims made at the hearing, in its reasons for decision:

   “The applicant claims that he fears harm in his country because he was a member of the committee of the Chattra League, the student arm of the Awami League, when he was a student at the Omar Gani (MES) Degree College at Chittagaong in 1994. There was a split on the committee between the President, Mohi Uddin, who the applicant supported, and the Secretary, Bathen, who took bribes from the BNP. During orientation in January 1995 a student was killed in crossfire between the group led by the President and the applicant, and the Bathen group who were assisted by the BNP and its student wing, Chattra Daal. The BNP leaders and Chattra Daal lodged a murder case against Chattra League leaders especially against the Mohi Uddin group. The applicant went into hiding from 1995 and in 1999. He claims that there were charges laid against him, associated with the murder of the student, and he was wanted by the police and the [Rapid Action Battalion]. Although the [Awami League] came to power in 1996 an application for the withdrawal of the case against the applicant was refused. With the assistance of his father, the applicant went to Saudi Arabia in 1999 but he became illegal there and the authorities told him he had to leave by 30 December 2006. He came to Australia via Bangladesh in January 2007.”

   THE RRT’S DECISION

6. The RRT found that the appellant’s account of his student experiences was not credible.  Whilst it accepted that he might have been involved in various activities such as publishing meeting dates of the Chattra League, it was not satisfied that he had a political profile of any kind or was of interest to the police or the Rapid Action Battalion (“RAB”), as he claimed.

7. The RRT gave extensive reasons for this finding, including:

   ·it was not satisfied that the appellant could have completed a degree in 1997 if he had been in hiding from the beginning of 1995;

   ·it was not satisfied that the appellant went into hiding in 1995;

   ·it was not satisfied that charges were laid against the appellant;

   ·it was not satisfied that the appellant was of interest to the authorities, or the police, or the RAB;

   ·it was of the opinion that the documents provided by the appellant that were said to have come from Awami League leaders were obtained to bolster the appellant’s claim and was not satisfied that the authors had personal knowledge of the appellant’s activities as a student;

   ·it was not prepared to give any weight to a letter, which had been provided by the appellant from his mother;

   ·it noted that the appellant’s delay in leaving Bangladesh in 1999 to go to Saudi Arabia (when he had been in hiding since 1995) supported its conclusion that the appellant was not of interest to the authorities;

   ·it noted that the fact that the appellant managed to obtain a new passport in September 2006, and that he returned to Bangladesh ‘via immigration’ in 2007, suggested that the appellant was of no concern to authorities;

   ·it found that the appellant did not have a political profile in Bangladesh, had not been involved in politics in Bangladesh for 12 years, and had lived outside Bangladesh for eight years. On this basis, the RRT repeated its conclusion that the appellant was not of interest to the authorities and that he would not be  detained, arrested, or in any way mistreated if he returned to Bangladesh;

   ·it noted independent country information that political activities were banned in Bangladesh and relied on this information to conclude that the appellant would not be persecuted now, or in the reasonably foreseeable future, if he were to return to Bangladesh.

8. The RRT concluded that the appellant was not a person to whom Australia owed protection obligations.

   THE DECISION OF ORCHISTON FM

9. In dismissing the application, Orchiston FM discussed in detail the legal principles relevant to the seven grounds of review advanced by the appellant.  Her Honour concluded that there were no jurisdictional errors in the RRT’s decision.

   NOTICE OF APPEAL

10. The notice of appeal to this Court identifies two grounds of appeal.  They are prolix and difficult to follow. 

11. The Minister submits that the first ground of appeal conflates several issues considered by the Federal Magistrate: a bare allegation of jurisdictional error, an allegation of absence of material to justify the decision, improper reliance on independent country information, and a breach of the common law rules of procedural fairness. 

12. It is unnecessary to set out the reasoning and conclusions of the Federal Magistrate in order to address these grounds, which are, like the grounds advanced by the appellant in the Court below, misconceived.  In my opinion, her Honour’s consideration of the matters raised was free from error.

13. The second ground appears to take issue with the RRT’s reliance on independent country information. The appellant appears to suggest that there have been other RRT decisions in which certain Bangladeshi country information has been taken into consideration in order to uphold an applicant’s claims for persecution in that country. There is also a reference to an alleged direction under s 353A/420A of the Migration Act1958 (Cth) and an apparent extraction of some of its terms.

14. As regards the appellant’s reliance upon other RRT decisions, this too is misconceived.  Decisions of the RRT on factual matters have no precedential value.  Each case is considered on its individual merits.  

15. The Minister submits that to the extent that the RRT had regard to a direction, assuming that it did, this is not of any relevance to the question of jurisdictional error. A direction under s 420A is akin to a practice direction of a court. But, as the terms of s 420A reveal, there is no absolute requirement for the RRT to comply with any such directions. Non-compliance does not mean that the RRT’s decision on a review is invalid: see s 420A(3).

16. In any event, as the Minister submits, the direction upon which the appellant relies refers to amendments made by Act No. 100 of 2007.  Those amendments apply only in relation to applications for review brought after 29 June 2007.  The appellant’s application for review was brought on 8 May 2007.  It follows that the amendments have no application to this case.

17. The appeal must be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg .

Associate:

Dated:       20 May 2008

The appellant appeared in person
Counsel for the First Respondent:	Ms L. Clegg
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	20 May 2008
Date of Judgment:	20 May 2008