SZLIC v Minister for Immigration and Citizenship
[2008] FCA 790
•30 May 2008
FEDERAL COURT OF AUSTRALIA
SZLIC v Minister for Immigration & Citizenship [2008] FCA 790
Migration Act 1958 (Cth) s 36(2)(a)
SZLIC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 385 OF 2008
EDMONDS J
30 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 385 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZLIC
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
30 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs in the sum of $1,400.00
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 385 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZLIC
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE:
30 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal from the Federal Magistrates Court ([2008] FMCA 230) dismissing an application for review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) refusing the appellant’s application for a protection (Class XA) visa.
BACKGROUND
The appellant is a citizen of Bangladesh who arrived in Australia on 11 March 2004. On 29 May 2007, the appellant lodged an application for a protection visa.
The appellant claimed to fear persecution in Bangladesh because of his political opinion and religion. He claimed that in 1994 he became involved with Jamat-I-Islam (‘JI’), an Islamist political party in Bangladesh, while he was studying at college. In order to become a member of JI, the appellant claimed that he was required to participate in and attend various ‘Muslim activities’ and that during some of the JI activities, the appellant witnessed ‘some fights, including bombings, shootings and cutting the tendon at the back ankle with daggers and many other acts of violence’. However, he states that he became disillusioned with JI and no longer wanted to participate in the party. The appellant claimed to have found out that he was in danger because he had witnessed criminal acts committed by members of JI. He then relocated to India to study for four years.
Upon his return to Bangladesh in 2002, he learned he was going to be called as a witness in a case against JI. As a result, he was targeted by JI and believed he would be killed if he told the truth. The appellant claimed he left Bangladesh for Australia to avoid being killed and that he fears being killed by JI members should he return to Bangladesh.
On 5 June 2007, the delegate refused to grant the appellant a protection visa and the appellant applied to the Tribunal for review of the delegate’s decision on 14 June 2007. On 8 August 2007, the Tribunal affirmed the delegate’s decision not to grant the appellant a protection visa.
THE TRIBUNAL’S DECISION
The Tribunal accepted that the appellant had some association with JI and had attended and engaged in some of their activities. The Tribunal noted and accepted the appellant’s evidence that he had been unable to meet the pre-conditions for membership of JI and had been pressured by JI to participate in their activities following his return from studying in India.
However, the Tribunal found that the appellant was not credible in respect of key aspects of his claims, namely, to have been branded a traitor and being required to act as a witness in matters involving JI since the appellant had given ‘unconvincing and ambivalent’ evidence as to why and in what manner JI would consider him to be a traitor; the lack of detail regarding the matters in which the appellant claimed he would be required to testify and the events he had witnessed which might lead to him being called as a witness; and the inconsistencies between evidence provided by the appellant in his protection visa application and at the hearing.
Given the unsatisfactory nature of the appellant’s evidence, the Tribunal did not accept that JI attributed to the appellant the profile of a ‘traitor’ nor did it accept that he was or would be required to be a witness in any court cases for or against JI in Bangladesh.
The Tribunal concluded that, as the appellant’s fear of persecution was not well-founded for any Convention reason including political opinion, religion or other ground, he was not a person to whom Australia has protection obligations under the Refugees Convention and failed to satisfy the criterion in s 36(2)(a) of the Migration Act 1958 (Cth) (‘the Act’).
FEDERAL MAGISTRATES COURT
On 13 September 2007, the appellant filed an application in the Federal Magistrates Court for judicial review of the Tribunal’s decision. In that application, the appellant raised four grounds:
(1)‘The Honourable M. Irene O’Connell failed to find error of law, jurisdictional error and procedure [sic] fairness in relief under section 36 of the Judiciary Act’;
(2)‘the first respondent misled me with wrong information’;
(3)‘I will provide more details later on’; and
(4)‘RRT deprived me from natural justice’.
On 13 December 2007, the Federal Magistrate dismissed the appellant’s application due to the failure of the appellant to appear.
On 18 December 2007, the appellant filed an application in a case and affidavit seeking reinstatement of his application.
On 6 March 2008, the Federal Magistrate reinstated the appellant’s application and proceeded to final hearing. The Federal Magistrate rejected each ground of the application and held that the Tribunal’s decision had not been affected by jurisdictional error.
APPEAL TO THIS COURT
The appellant’s notice of appeal raises three grounds:
(1)‘The honourable FM did not find fore [sic] the errors’ (‘Ground 1’);
(2)‘The decision of the first respondent does not have enough information about the refusal’ (‘ Ground 2’); and
(3)DIAC misled me with wrong information’ (‘Ground 3’).
Ground 1 does not particularise any error in the Tribunal’s decision which the Federal Magistrate did not find and on the hearing of the appeal, the appellant was not able to identify any such error. Accordingly, this ground of appeal cannot be sustained.
In respect of ground 2, I asked the appellant to identify in the Tribunal’s reasons, under the heading ‘Claims and Evidence’, what information he alleges should be contained in that section of the Tribunal’s reasons which is not there. He was not able to identify any such information. Again, this ground of appeal cannot be sustained.
Ground 3 was a ground relied upon by the appellant in the Court below. In his reasons, his Honour said at [19]:
‘I agree with Ms Crittendon’s written submissions that other than the letters sent by the delegate acknowledging receipt of the applicant’s protection visa application and the refusal of the protection visa application, no other information was provided to the applicant by the Minister or his delegate. Further there is nothing on the face of these letters which indicate that he was given “wrong information”. The evidence before this Court is limited to the Court Book. A fair reading of the documents contained therein does not indicate that any wrong information is within those documents. There was no transcript of the hearing before the Tribunal. In the circumstances I believe that this ground should be dismissed.’
On the hearing of the appeal, I asked the appellant to identify any such wrong information, that is, wrong information which misled him, and he declined to do so. In the circumstances, this ground cannot be sustained.
CONCLUSION
In the circumstances, the appeal must be dismissed with costs.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate:
Dated: 30 May 2008
Counsel for the Appellant: The appellant appeared in person Solicitor for the Respondents: Ms A Crittenden
Clayton Utz
Date of Hearing: 28 May 2008 Date of Judgment: 30 May 2008