SZMFA v Minister for Immigration - [2008] FMCA 1468

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMFA v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 1468

MIGRATION – Review of decision of Refugee Review Tribunal – whether jurisdictional error – Protection (Class XA) visa – whether failure to consider ‘real chance’ of persecution in the foreseeable future in the event of the Awami League assuming government – applicant must make out own case – whether s.91R of the Act misapplied.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5, 36, 65, 91R, 91S, 424A, 474

Applicant:

SZMFA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1086 of 2008

Judgment of:

Orchiston FM

Hearing date:

1 September 2008

Date of Last Submission:

1 September 2008

Delivered at:

Sydney

Delivered on:

31 October 2008

REPRESENTATION

Counsel for the Applicant:

Mr C. Jackson

Counsel for the Respondent:

Mr T. Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The application filed on 30 April 2008, the amended application filed on 16 July 2008 and the further amended application filed on 1 September 2008, are dismissed.
The Applicant pay the First Respondent’s costs fixed in the sum of $5490.00 payable within six (6) months of the date of these Orders.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1086 of 2008

SZMFA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The Application

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth), as amended, (the Act) seeking review of the decision of the Refugee Review Tribunal (the Tribunal) handed down on 8 April 2008 which affirmed the decision of the delegate of the respondent Minister (the delegate) to refuse to grant a Protection (Class XA) visa to the applicant.

Background

The applicant was born on 1 November 1975. He claims to be a national of Bangladesh, of Sunni ethnicity, and of Islamic faith.
The applicant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] FMCA 1468
Decision Date: 31 October 2008

CaseChat Overview and Summary

The case of SZMFA v Minister for Immigration involves the applicant, SZMFA, contesting the decision of the Minister for Immigration to cancel his visa. The central issue in dispute is whether the Tribunal erred in its consideration of the reasonably foreseeable future when assessing the applicant's claim for refugee status. The Tribunal had found that the applicant did not have a well-founded fear of persecution if he were to return to Bangladesh under the current caretaker government. The applicant argued that this finding was incorrect and that the Tribunal failed to properly consider the risk he might face if the Awami League were to return to power in the future.

The court examined whether the Tribunal appropriately evaluated the situation in the reasonably foreseeable future, specifically considering the risk of persecution by the current caretaker government. It was established that the applicant did not express concerns about persecution by the Awami League during the Tribunal hearing or in his responses to the Tribunal's letters. The court reinforced the principle that it is the applicant's responsibility to present their case sufficiently to allow the Tribunal to make an informed decision. The Tribunal had considered the reasonably foreseeable future within the context of the current caretaker government's tenure and found that there was no real chance of the applicant being persecuted for his political opinion.

The court upheld the Tribunal's decision, ruling that it was within the Tribunal's authority to consider the foreseeable future based on the current caretaker government's circumstances. The Tribunal's findings were deemed reasonable given the evidence presented. Consequently, the application for judicial review was dismissed, and the applicant was ordered to pay the Minister's costs.

Orders

Orders of the court

The application filed on 30 April 2008, the amended application filed on 16 July 2008 and the further amended application filed on 1 September 2008, are dismissed.

The Applicant pay the First Respondent’s costs fixed in the sum of $5490.00 payable within six (6) months of the date of these Orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant has not provided the Court with the transcript of the evidence taken at the Tribunal hearing. Without this assistance, I consider that a fair reading of the Tribunal’s summary of the applicant’s Claims and Evidence (at CB 122-125) indicates that at no time during the hearing did the applicant express any concerns of persecution if the Awami League were to return to power in the future. Furthermore, following the Tribunal hearing, the Tribunal wrote to the applicant on two occasions (CB 69-70 and 96-97). The applicant replied to both s.424A letters (CB 71-72 and 98-99). In neither letter of response did he express any concerns of persecution if the Awami League were to return to power in the future. I am thus satisfied that the applicant, at all relevant times, directed his alleged fear of persecution to the actions of the current caretaker government in Bangladesh. The applicant did not directly raise with the delegate or the Tribunal the question whether he might be persecuted should the Awami League at some future time get back into power. It appears that this contention has only been raised by the applicant subsequent to the Tribunal handing down its decision. It is well-settled that a decision-maker is not required to make the applicant’s case for him: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-70; SZBEL at [40]; Re Ruddock; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57] and [1]; WAKK v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 225 at [73]. Indeed, an applicant will have to supply the relevant facts of his case in as much detail as is necessary to enable the Tribunal to establish the relevant facts. As stated by the Full Federal Court in Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 at [76]:In an inquisitorial process, it was for the respondent to put whatever evidence or argument he wished to the decision-maker to enable her to reach the requisite state of satisfaction. As further observed by the High Court in Abebe v Commonwealth (1999) 197 CLR 510 at [187]:It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out. Taking all the above matters into account, I consider that it is within this context of alleged risk of persecution by the current caretaker government that the Tribunal was required to consider the situation in the reasonably foreseeable future. I consider that the Tribunal in its Findings and Reasons specifically considered the reasonably foreseeable future in relation to what may happen to the applicant if he were to return to Bangladesh whilst the current caretaker government remained in office:In the circumstances and given the situation in the country described in the High Commission’s report at 37-38 above, [CB124-125], I do not accept that any harm has unjustly come to any of the applicant’s colleagues and therefore do not accept that there is a real chance that the applicant would himself be arrested or otherwise harmed for reason of his political opinion if he were to return to Bangladesh. In particular, I do not accept tha the police have been looking for him since he left the country or that he was forced into hiding prior to leaving.I find that he could return and resume political activity subject to compliance with the present emergency rules. These would not prevent him meeting with colleagues and participating in the reform of his party (CB 126).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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