SZOWQ v Minister for Immigration and Citizenship
[2011] FCA 924
•12 August 2011
FEDERAL COURT OF AUSTRALIA
SZOWQ v Minister for Immigration and Citizenship [2011] FCA 924
Citation: SZOWQ v Minister for Immigration and Citizenship [2011] FCA 924 Appeal from: SZOWQ v Minister for Immigration & Citizenship & Anor [2011] FMCA 248 Parties: SZOWQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 544 of 2011 Judge: BROMBERG J Date of judgment: 12 August 2011 Legislation: Migration Act 1958 (Cth) ss 36(3),(4) & (5), 91R(3), 424A Cases cited: SZOWQ v Minister for Immigration & Anor [2011] FMCA 248 Date of hearing: 12 August 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 23 Counsel for the Appellant: The Appellant appeared in person assisted by an interpreter Solicitor for the First Respondent: Mr J Pinder of DLA Piper
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 544 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOWQ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE OF ORDER:
12 AUGUST 2011
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the first respondent’s costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 544 of 2011
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZOWQ
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
BROMBERG J
DATE:
12 AUGUST 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal from a judgment of a federal magistrate (SZOWQ v Minister for Immigration & Anor [2011] FMCA 248) in which the learned Federal Magistrate dismissed the appellant’s application for judicial review. The Federal Magistrate reviewed a decision of the Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of a delegate (“the delegate”) of the first respondent (“the Minister”) not to grant the appellant a protection visa.
The task of the Federal Magistrates Court in dealing with the judicial review proceedings brought by the appellant was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (“the Migration Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
The task of this Court in relation to the appeal brought by the appellant is to determine whether the judgment of the Federal Magistrate who determined the appellant’s judicial review proceedings is affected by appealable error.
For the reasons that follow I have determined that the appeal has no merit and should be dismissed.
BACKGROUND
The appellant is a national of Bangladesh and a permanent resident of Greece who arrived in Australia on 13 February 2010. The appellant filed an application for a protection (Class XA) visa on 25 March 2010 on the grounds that he feared harm in both Bangladesh and Greece on the basis of his conversion to Christianity from Islam. On 2 August 2010 the delegate refused that application and on 26 August 2010 the appellant applied for a review of the delegate’s decision by the Tribunal.
On 15 October 2011 the appellant attended a hearing before the Tribunal. Following the hearing the Tribunal invited the appellant in writing to comment on information the Tribunal considered adverse to his claims. By reason of its decision dated 1 December 2010, the Tribunal dismissed the application and affirmed the delegate’s decision not to issue a protection visa to the applicant.
THE TRIBUNAL’S DECISION
The decision of the Tribunal was helpfully summarised by the Federal Magistrate at [6]-[7] of his reasons for judgment as follows:
6.The Tribunal accepted that the applicant was a national of Bangladesh and a permanent resident of Greece without limitations or restriction. The Tribunal accepted that the applicant converted to Christianity while he was residing in Greece.
7.The Tribunal found that the applicant had a legally enforceable right to enter and reside in Greece within the meaning of s.36(3) of the Migration Act 1958 (Cth) (“the Migration Act”) and that he had not taken all possible steps to avail himself of that right. The Tribunal did not accept the applicant's claims concerning past Convention related harm in Greece. It did not accept that the applicant had a well founded fear of persecution for a Convention reason in Greece, or that he would be returned to Bangladesh (see ss.36(4) and 36(5) of the Migration Act).
a)The Tribunal did accept that the applicant was subject to extortion attempts and threats by certain individuals in Greece. It did not accept that the applicant suffered any harm for the reason of his religion or any other Convention reason, or that the applicant was restricted in any way in practising or expressing his religious beliefs in Greece.
b)The Tribunal was further satisfied of the availability of effective state protection in Greece.
GROUNDS OF APPEAL IN THIS COURT
On 29 April 2011, the appellant filed a Notice of Appeal in this Court which contained the following stated grounds of appeal:
1.The Magistrate of the Court below failed to consider my fear of persecution under s 91R of the Migration Act.
Particulars
A.The Tribunal failed to consider my fear of persecution under s 91R of the Migrations Act that:
i) The Tribunal failed to deal with my religious activities in Australian as a Christian. The Tribunal failed to ask me any material question that how I would have been adversely affected by the religious activities in Australia if I return to country in Bangladesh and Greece.
2.The Magistrate of the Court below failed to understand the General Diary lodged to the police in Greece and other documents that I lodged to the Tribunal.
Particulars
B.The Tribunal filed to understand the General Diary lodged to the Police in Greece and other documents that I lodged to the Tribunal that:
i) The Tribunal’s doubts as to the veracity of the applicant’s claims are exacerbated by the contents of the complaint which he claimed to have lodged at a police station in Athens on 7 November 2008 against his assailants.
3.The Magistrate of the Federal Court below failed to find the Tribunal’s error that the Tribunal made wrong conclusion about the persecution in Greece and my relocation in Greece.
Particulars:
C.The Tribunal made wrong conclusion about the persecution in Greece and my relocation in Greece that:
i) The finds that any harm the applicant may suffer in Greece is not for reasons of his race, religion, nationality, membership of a particular social group or political opinion.
ii) The Tribunal is unable to reconcile the various inconsistencies in the applicant’s evidence regarding his travels to and stays in Santorini and is of the view that the shifts in his evidence were designed to mask his true circumstances in Greece.
At the hearing, the appellant appeared in person and was assisted by an interpreter. The appellant did not relevantly add to his written submissions.
The appellant’s grounds of appeal closely follow the grounds of appeal that were before the Federal Magistrate. The only difference between these grounds of appeal and those that the Federal Magistrate dealt with is that the failure of the Federal Magistrate referred to in the grounds of appeal before me were, before the Federal Magistrate, asserted to be failures of the Tribunal. The appellant’s written submission made it clear that, despite the way in which the grounds of appeal are worded, his complaint is that the Federal Magistrate failed to identify errors in the Tribunal’s decision of the kind identified in each of the particulars to each of the grounds set out above. I will approach the appeal on that basis.
Ground one
By the first ground of appeal, as expanded upon by the appellant’s written submission, he complains that the Tribunal failed to deal with his religious activities in Australia and failed to consider that he may be persecuted if he is returned to Greece or Bangladesh on the basis of his religious activities in Australia.
The Federal Magistrate considered whether the Tribunal had failed in these respects at [11]-[18] of his reasons for judgment. The Federal Magistrate correctly observed that the Tribunal had accepted the truth of the appellant’s conversion to Christianity in Greece, had appreciated the appellant’s religious activities in Australia and that its decision was to be understood as including the inferential finding that the appellant was a genuine Christian adherent in Australia. The Federal Magistrate correctly concluded that in those circumstances, it was unnecessary for the Tribunal to pay any further regard to s 91R(3) of the Migration Act.
The Federal Magistrate then dealt with the second aspect of ground one and the asserted failure of the Tribunal to deal with the prospect that the appellant may be persecuted if returned to Greece or Bangladesh on the basis of his religious activities in Australia. The Federal Magistrate correctly concluded that the appellant had made no claim to the Tribunal that his religious activities in Australia raised the possibility that he would be persecuted in Greece or Bangladesh. As the Federal Magistrate correctly identified by reference to the authorities cited by him, it was for the appellant to advance such a claim and the Tribunal was not obliged to suggest a potential claim, nor to enquire further, nor to prompt and stimulate an elaboration of the appellant’s claims.
There is no merit in the appellant’s contention that the Federal Magistrate failed to identify any jurisdictional error of the Tribunal. There is therefore, no merit in the appellant’s first ground of appeal.
Ground two
The appellant’s complaint against the Tribunal which is raised by ground two was dealt with by the Federal Magistrate at [19]-[24] of his reasons for decision.
Those reasons (at [23]) reveal that before the Federal Magistrate, the appellant raised by his written submissions the further complaints that are also raised in the written submissions relied upon by the appellant on this appeal.
The Federal Magistrate comprehensively dealt with each of the matters raised which have been essentially repeated before me. The appellant has failed to suggest any error in the way in which the Federal Magistrate determined those matters. No error is apparent. To the contrary, on the basis of the authorities to which he referred, the Federal Magistrate was correct to determine that:
·There is no error disclosed in the Tribunal’s treatment of the report lodged with the Police in Greece; and
·There was no basis for the appellant’s contention that the Tribunal had asked unnecessary questions and failed to investigate the authenticity of the report to the Police.
Ground three
By his third ground the appellant asserts that the Tribunal made a wrong conclusion about the appellant’s persecution in Greece and his capacity to relocate within Greece. These matters were dealt with by the Federal Magistrate at [25]-[28] of his reasons for judgment.
No error on the part of the Federal Magistrate was identified by the appellant and none is discernable.
The Tribunal’s finding that any harm the appellant may suffer in Greece is not for reasons of his race, religion, nationality, membership of a particular social group or political opinion was based upon the Tribunal’s non-acceptance of the appellant’s claims that he had been persecuted in Greece for a Convention reason. The Convention to which I refer is the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”). That non-acceptance was itself based upon the findings of the Tribunal that the appellant was not a credible, truthful and reliable witness. The reason for any prior harm experienced by the appellant in Greece was, as the Federal Magistrate correctly determined, a question of fact for the Tribunal.
The second aspect of the appellant’s third ground of appeal is misconceived. The appellant’s written submissions proceed on the mistaken basis that the Tribunal had determined that relocation within Greece was available to the appellant. However, as the Federal Magistrate correctly observed that was not an issue which the Tribunal determined. The issue dealt with by the Tribunal was the application of s 36(3) of the Migration Act. The Tribunal determined that Australia did not have any protection obligations to the appellant, given that the appellant enjoys a right to reside permanently in Greece. In arriving at that conclusion, the Tribunal determined that Greece (in its entirety) was not a country in which the appellant was likely to suffer harm for a Convention reason.
I respectfully agree with the Federal Magistrate, that following careful and thorough analysis of the circumstances in Greece, the Tribunal correctly applied s 36(3) of the Migration Act when read with ss 36(4) and 36(5). The Tribunal’s decision that Greece was a safe place in which the appellant can reside, was not based upon any determination that the appellant has a capacity to relocate within Greece from his former home in Athens. The appellant’s challenge in this respect, is based upon a misunderstanding of what the Tribunal decided.
CONCLUSION
For the reasons I have indicated, all three grounds of appeal lack merit and the appeal must be dismissed. It follows that the appellant should pay the Minister’s costs of the appeal. I will make orders accordingly.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg. Associate:
Dated: 12 August 2011