SZLLX v Minister for Immigration and Citizenship
[2008] FCA 648
•15 May 2008
FEDERAL COURT OF AUSTRALIA
SZLLX v Minister for Immigration and Citizenship [2008] FCA 648
SZLLX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 168 OF 2008
COWDROY J
15 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 168 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLLX
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE OF ORDER:
15 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The Appellant pay the costs of the First Respondent.
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 168 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZLLX
AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
COWDROY J
DATE:
15 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The appellant appeals from the decision of Federal Magistrate Smith delivered on 23 January 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 13 September 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a Protection (Class XA) visa (‘the protection visa’) to the appellant.
BACKGROUND
The appellant is a citizen of Bangladesh who arrived in Australia on 5 February 2003 holding a student visa. In January 2005 the appellant returned to Bangladesh, but returned again to Australia in February 2005. The appellant’s student visa expired on 15 March 2005. The appellant remained in Australia and was taken into immigration detention in March 2006.
On 26 July 2007 the appellant lodged an application for the protection visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for the protection visa on 31 July 2007. On 3 August 2007 the appellant applied to the Tribunal for a review of the delegate’s decision.
THE TRIBUNAL HEARING
The appellant appeared with the assistance of an interpreter before the Tribunal on 4 September 2007. The appellant claimed to have well-founded fear of persecution resulting from his political opinion. The appellant claimed to have been an active member of the Bangladesh Awami League (‘the Awami League’) from 1999 and had been involved in various activities such as organising processions against the Bangladesh Nationalist Party (‘the BNP’). The appellant claimed that his uncle was also an active member of the Awami League.
The appellant claimed that following the BNP’s election victory in 2001 the appellant’s family faced ‘various pressure’ from the BNP. Such pressure caused the appellant’s uncle to resign from his employment. The appellant claimed that in 2002 he received an anonymous letter threatening to kill his family if he and his family did not ‘stop politics’. Shortly after the receipt of such letter the appellant’s uncle fled to Saudi Arabia whilst the remainder of his family moved to another area.
In March 2002 the appellant enrolled in college at the Independent University of Bangladesh. The appellant claimed that he was threatened by two BNP members in August 2002. The appellant claimed that the two BNP members wanted to know his uncle’s location. The appellant claimed that he decided to leave Bangladesh to save his life. The appellant entered Australia on 5 February 2003.
The appellant claimed that in January 2005 his uncle advised him that he was returning to Bangladesh as the situation there had improved. The appellant claimed that he returned to visit his family and claimed that whilst in Bangladesh he attended Awami League meetings. The appellant claimed his uncle was kidnapped during the first week of February 2005. The appellant subsequently returned to Australia. He claimed that after returning to Australia he was informed by his father that the appellant’s uncle had been found outside the house of the appellant’s family. The appellant claimed that his uncle had been badly beaten and was now paralysed.
The appellant indicated to the Tribunal that whilst in Australia, he learnt from a friend in Bangladesh that the same two BNP members continued to wait for and ask after the appellant. He also claimed that he was ‘psychologically sick’ and submitted various correspondence to the Tribunal indicating that he was receiving medical care.
THE TRIBUNAL DECISION
The Tribunal considered the appellant’s health claims. The Tribunal noted that no medical reports had been forwarded to the Tribunal; the appellant’s adviser had informed the Tribunal that a psychiatrist had determined that the appellant was competent to present evidence at the hearing; and that the appellant’s oral evidence was ‘lucid and relevant’. The Tribunal noted that although the appellant was stressed in relation to his detention, it was ‘satisfied that the applicant had a full opportunity and was able to present his claims and evidence’.
The Tribunal considered that the appellant was not a credible witness and that his refugee claims were of recent invention. The Tribunal accepted that the appellant and the appellant’s family favoured the Awami League. However, it did not accept that the appellant was an Awami League activist or that he had a political profile. The Tribunal did not accept the appellant had any genuine ongoing interest in the Awami League or Bangladeshi politics as he did not keep himself informed of the party’s activities. The Tribunal found that the appellant’s commitment to the Awami League was ‘insignificant’ and did not accept that he would be motivated to engage in political activities if he were to return to Bangladesh.
The Tribunal did not accept that death threats had been made to the appellant and the appellant’s family. The Tribunal also found the appellant had little knowledge of the two BNP members who were allegedly pursuing him.
The Tribunal accepted that the appellant’s uncle was a local party member but did not accept that he was an activist or had a profile within the Awami League other than as a regular party member. The Tribunal accepted that the appellant’s uncle was paralysed but did not accept that such physical condition resulted from politically motivated violence.
The Tribunal affirmed the delegate’s decision to refuse to grant the protection visa.
APPLICATION IN THE FEDERAL MAGISTRATES COURT
By application filed on 9 October 2007 the appellant sought judicial review of the Tribunal’s decision. The appellant raised five grounds of review, namely that the Migration Act 1958 (Cth) (‘the Act’) was not observed properly; the Tribunal member failed to act in good faith; the Tribunal decision was ‘not reasonably capable of reference to the decision making power given to RRT member’; the officers of the Department of Immigration and Citizenship misled the appellant; and that the Tribunal deprived the appellant of natural justice.
At the hearing before Federal Magistrate Smith on 23 January 2008 the appellant asserted that he had not been psychologically fit to participate in the hearing before the Tribunal. The Federal Magistrate considered the Tribunal’s findings in relation to the appellant’s alleged psychological problems and was not satisfied that the Tribunal had denied the appellant the opportunity required to be given to him under s 425 of the Act.
At the hearing before Smith FM the appellant also made criticisms of the assistance provided to him by his migration agent. The Federal Magistrate noted that such criticisms were unsupported by evidence.
In his Honour’s decision handed down on 23 January 2008 Smith FM found that none of the raised grounds of review established that the Tribunal had fallen into jurisdictional error. His Honour accordingly dismissed the appellant’s application.
APPEAL TO THIS COURT
On 11 February 2008 the appellant filed a notice of appeal in this Court which raised four grounds of appeal as follows:
1.The honourable Magistrate failed to find error of law, jurisdictional error and procedural fairness and relief under section 39B of the Judiciary Act 1903;
2.The Second Respondent committed jurisdictional error by failing to comply with the mandatory provisions of s 425, by failing to provide the Applicant with a real and meaningful invitation to an oral hearing. The Court did not provide the Applicant with the fair hearing required by the Act;
3.The honourable Magistrate did not take the affidavits into my account and made his judgement on 23rd of January 2008;
4.The First Respondent misled me with wrong information.
In an affidavit filed on 11 February 2008 the appellant claims that at the time of the hearing before the Tribunal he was suffering from various psychological illnesses. The appellant claims that the Tribunal had been put on notice orally and in writing of such illnesses. The appellant claims that the Tribunal made adverse credibility findings based in part upon the oral evidence which he provided to the Tribunal.
At the hearing of the appeal before the Court on 12 May 2008 the appellant appeared with an interpreter and with a friend, Ms Natalie Gould. Ms Gould is not legally qualified, but the Court permitted her to speak for the appellant. Ms Gould was not able to advance any submissions in respect of the grounds of appeal contained in the notice of appeal. However, she submitted that the appellant’s medical records from Villawood Detention Centre should be admitted into evidence. She submitted that such records would show that the appellant was unwell at the time of the Tribunal hearing.
The Court permitted the medical records to be tendered, subject to relevance.
FINDINGS
In the absence of any particulars or other explanation in support of ground one, the Court is unable to determine that it raises any meaningful ground of appeal.
With regard to the second ground of appeal, it is not possible to discern any error in the reasoning of the Federal Magistrate. A hearing was provided to the appellant before the Tribunal. During the hearing before the Tribunal the appellant said that his memory was affected and that he occasionally ‘felt his hands shake prior to having hallucinations’. The Tribunal recorded that the appellant appeared lucid and competent. Nevertheless an adjournment was granted to enable the adviser of the appellant to telephone a psychiatrist to provide an opinion concerning the appellant’s fitness to give evidence at the hearing. Upon resumption the Tribunal was informed that the psychiatrist considered that the appellant was competent to present evidence at the hearing.
In answer to the submissions made for the appellant which suggested that his medical condition may have prevented him from obtaining a fair hearing, the Court must bear in mind that it has no power to substitute its own findings of fact for those of the Tribunal: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 391-392; and Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-42. Further, the appellant’s medical records were not before the Federal Magistrate.
The Tribunal, having caused the enquiry to be made of a psychiatrist, was satisfied that the appellant was fit to proceed with the hearing. The medical records tendered before this Court relate to that issue. To consider such records would be to interfere with a factual finding of the Tribunal, which is impermissible in light of the above authority.
The Court finds that Smith FM was correct in his finding that there was no breach of s 425 of the Act. The Court cannot discern any basis to suggest that there had not been a fair hearing provided to the appellant before the Tribunal.
With regard to the third ground of appeal, namely that the Federal Magistrate did not take ‘the affidavits into my account’, the only affidavit filed by the appellant was the affidavit which accompanied his application for review. Such affidavit partially repeated the appellant’s grounds of review and attached the Tribunal’s decision record. No error by the Federal Magistrate or by the Tribunal is identifiable.
The fourth ground of appeal alleges that the first respondent misled the appellant. A similar allegation was considered by Smith FM. His Honour described such contention as ‘obscure’.
The ground of appeal may refer to the explanation given by the appellant to the Tribunal for his pursuit of other avenues for staying in Australia before making a claim for the protection visa. The Tribunal considered those explanations and rejected them as ‘spurious’ for reasons which demonstrate neither error nor jurisdictional error. In the absence of particulars of such a claim, the Court is unable to discern any jurisdictional error by his Honour in respect of the fourth ground of appeal.
It follows that the appeal should be dismissed with costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate:
Dated: 15 May 2008
Counsel for the Appellant: Appellant appeared in person Counsel for the First Respondent: Ms McWilliam Solicitor for the First Respondent: Ms Hooper
Date of Hearing: 12 May 2008 Date of Judgment: 15 May 2008
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