SZQUI v Minister for Immigration and Citizenship
[2012] FCA 839
•8 August 2012
FEDERAL COURT OF AUSTRALIA
SZQUI v Minister for Immigration and Citizenship [2012] FCA 839
Citation: SZQUI v Minister for Immigration and Citizenship [2012] FCA 839 Appeal from: SZQUI v Minister for Immigration & Anor [2012] FMCA 272 Parties: SZQUI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 546 of 2012 Judge: YATES J Date of judgment: 8 August 2012 Catchwords: MIGRATION – application for protection visa refused – whether error disclosed in judicial review of a decision of the Refugee Review Tribunal Legislation: Migration Act 1958 (Cth) Cases cited: Abebe v The Commonwealth of Australia (1999) 197 CLR 510
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407Date of hearing: 8 August 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 17 Counsel for the Appellant: The Appellant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms H Dejean of Australian Government Solicitor Solicitor for the Second Respondent: Submitting appearance
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 546 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQUI
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE OF ORDER:
8 AUGUST 2012
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The order made earlier today pursuant to r 36.75(1)(a) of the Federal Court Rules 2011 dismissing the appellant’s appeal be set aside pursuant to r 39.04.
2.The appeal be dismissed with costs.
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 546 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQUI
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
YATES J
DATE:
8 AUGUST 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)
This is an appeal from a judgment of the Federal Magistrates Court of Australia (the Federal Magistrates Court) given on 2 April 2012 in which the appellant unsuccessfully sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 30 September 2011. By that decision the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) given on 2 February 2011 refusing the appellant’s application for a Protection (Class XA) visa.
Background
The appellant arrived in Australia on 5 September 2010 on a visitor visa issued on 18 August 2010. He claims to be a citizen of Bangladesh. The visitor visa was valid until 4 October 2010. On 1 October 2010 the appellant applied for the protection visa. Section 36(2)(a) of the Migration Act 1958 (Cth) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees (together, the Convention).
The appellant claims to be a person to whom Australia has protection obligations under the Convention. Further criteria for the grant of a Protection (Class XA) visa are set out in Pt 866 of Sch 2 to the Migration Regulations 1994 (Cth).
The presiding Federal Magistrate conveniently summarised the appellant’s claims at [13]-[19] of her reasons as follows:
13.In his protection visa application, the applicant claimed to have been employed as a press and publication officer of the Bureau of Human Rights Bangladesh (“BHRB”) from January 2004 to September 2010.
14.The applicant claims that there is a “serious threat” to his life from the “Jamaat-ul-Mujahideen Bangladesh” (“JMB”) as a result of publishing a book on 23 November 2005 entitled “Autobiography of an Extremist”. He claimed that he had been “attacked physically” by the JMB after publication and leaflets and letters were sent to his home.
15.The applicant also claimed that he feared harm from “many illegal and legal extreme fundamentalist groups, parties and individuals acting on religious zeal especially JMB” if he were to return to Bangladesh.
16.The applicant claimed to have published a number of books upholding social justice and supporting pro-liberation activity. The applicant claimed that his reports were published in newspapers and his documents and contacts sent to the central intelligence authority “to help curb the extreme religious groups”.
17.The applicant claimed that he had been threatened over the telephone and received threatening letters and that state authorities cannot keep him safe.
18.The applicant claimed that there had been “... numerous attack[s] and death threats on [a] number of writers, poets and the activists of civil society.” He claimed that as a writer and publisher of works that uphold democratic social justice and pro-liberation activity, he is a target by the JMB because he has vocalised his opposition against the group’s extremist interest. Further the applicant claimed that the JMB held him responsible for recent government action against them because his work has been published in newspapers and used “... by the authorities to police extremist groups”.
19.The applicant further claimed that after the physical attacks he was sent leaflets at his residence, causing him to sell his residence and relocate with his family.
The Tribunal’s decision
The presiding Federal Magistrate at [32] accepted as accurate the following summary of the Tribunal’s decision:
6.1The Tribunal accepted that the applicant was a national of Bangladesh and assessed his claims against Bangladesh as his country of nationality. The Tribunal also accepted that the applicant has published some books and other materials through his publishing company in Bangladesh. Beyond this, however, the Tribunal did not accept that the applicant had given a truthful account of his circumstances in Bangladesh and found him not to be a truthful witness …
6.1The Tribunal did not accept that the applicant was employed by the BHRB due to inconsistent evidence provided by the applicant regarding the dates he claimed to have been employed there, the address and contact details of the organisation and the applicant's knowledge of those details. The Tribunal considered the applicant's response to its s 424A letter regarding these issues, namely that the applicant suffered from poor memory, and a letter from STARTTS said to support that claim, but was not satisfied that this explained the inconsistencies …
6.2The Tribunal also considered a reference letter claimed to have been written by the General Secretary of the BHRB … but gave the letter no weight given the inconsistencies in the applicant's evidence as well as what it found to be inconsistencies between the General Secretary's letter and his signature and other details contained on the letter compared with other letters written by the General-Secretary. The Tribunal considered the applicant's request to contact the writer of the letter to confirm the letter's genuineness. The Tribunal decided it did not need to make further enquiries 'because there are a significant number of inconsistencies relating to the applicant's claimed employment which cast doubt on his evidence he was employed at the BHRB' …
6.3The Tribunal found that the applicant's inconsistent and contradictory evidence relating to his claimed attendance at a book fair/symposium in Germany, threats made against him at that time and the sequence of events before and after this travel, cast doubt on his claims that his family received threats relating to him from an armed Islamic group while he was in Germany and that he was threatened and assaulted in 2005. It also cast doubt on his overall credibility as a witness of truth …
6.4The Tribunal found that the applicant's evidence regarding the timing of his decision to travel to Australia to be inconsistent and did not accept the applicant's explanations regarding his having previously obtained a visa to travel to Malaysia and found that this cast doubt on his claims …
6.5As a result of these findings, the Tribunal did not accept the applicant was a witness of truth or that any of the claimed incidents occurred. The Tribunal also considered the applicant's claims and a letter of support … that stated that the applicant had been a newspaper editor and writer for a Bangla newspaper published in Sydney and that his writings in a local Bangla newspaper had made him an enemy of Islamic organisations and forced him to leave Bangladesh. The Tribunal noted that the applicant had provided no independent evidence to support these claims and the Tribunal did not give the claims any weight, noting again that it did not accept the applicant is a witness of truth. The Tribunal then considered whether the applicant might be targeted as a member of a particular social group of writers targeted by armed Islamic groups but did not accept such a claim …
There is no challenge to the accuracy of that summary in this appeal.
The proceeding in the Federal Magistrates Court
The appellant’s grounds for judicial review of the Tribunal’s decision were set out in an amended application filed on 19 December 2011. Those grounds were stated as follows:
1.The Refugee Review Tribunal failed to put weight to the documents which were the vital documents in support of my claims.
Particulars:
A.The Tribunal failed to put weight to the documents which were the vital documents in support of my claims. For example, Dr Shahjahan’s reference letter and Counsellor’s report from STARTTS. The Tribunal’s following comment indicated this perception that:
i)The Tribunal gives the reference letter, dated 20 June 2011, no weight.
ii)The Tribunal gives the reference letter, dated 4 November 2011, no weight.
2.The Refugee Review Tribunal made wrong assumption about my employment with the Bureau of Human Rights Bangladesh.
Particulars:
A.The Tribunal made wrong assumption about my employment with the Bureau of Human Rights Bangladesh. The Tribunal made a comment that:
i)The Tribunal does not accept the applicant has ever been employed by the Bureau of Human Rights Bangladesh where the Bureau provided reference letter for employment.
3.The Refugee Review Tribunal failed to consider my persecution under section 91R of the Migration Act.
Particulars:
A.The Tribunal failed to consider my persecution on the basis of my particular works as a Human rights activist and as a writer writer where this group could be considered as particular social group under the Convention. Further the Tribunal made comment that:
i) The Tribunal finds the applicant has never attracted the adverse attention ……………….
In relation to ground 1 the presiding Federal Magistrate reasoned that the appellant was seeking to do no more than agitate the Tribunal’s findings with respect to the documents that had been particularised in respect of that ground. In substance the appellant was inviting the Federal Magistrates Court to engage in a merits review of the Tribunal’s findings with respect to those documents, which the Federal Magistrates Court could not undertake: Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [195]; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Nevertheless her Honour considered the Tribunal’s findings and found that they were open to be made on the material and evidence before the Tribunal and for the reasons that it gave. In that connection her Honour noted that adverse credibility findings had been made. Her Honour noted that such findings are a matter par excellence for the Tribunal: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. The significance of these documents and the findings made by the Tribunal in relation to them are set out in [106]-[109] of the Tribunal’s decision record and are summarised in the paragraphs I have quoted above. Her Honour concluded at [49] that no jurisdictional error had been demonstrated under ground 1.
In relation to ground 2 her Honour reasoned that once again the appellant was seeking to do no more than to agitate the Tribunal’s findings about the appellant’s claimed employment with the Bureau of Human Rights Bangladesh (BHRB) from January 2004 to September 2010. In this connection the Tribunal found that the appellant was not employed by the BHRB as he had claimed. Once again her Honour concluded that no jurisdictional error had been demonstrated under ground 2.
In relation to ground 3 her Honour found that, contrary to what had been alleged in that ground, the Tribunal had considered the appellant’s claims of feared persecution by reason of him being a member of a particular social group of human rights activists and writers, and that those claims had been comprehensively rejected. Her Honour noted at [57] that the fundamental reason for the Tribunal’s rejection of those claims was its adverse credibility findings in respect of the appellant.
Her Honour found that those findings were open to the Tribunal on the evidence and material before it and for the reasons it gave. Her Honour found that no jurisdictional error had been demonstrated under ground 3.
Her Honour concluded as follows:
62.A fair reading of the Tribunal’s decision record makes clear that the Tribunal understood the claims being made by the applicant; explored those claims with the applicant at a hearing; and, had regard to all material provided in support. The Tribunal put to the applicant matters of concern it had about his evidence and noted the applicant’s responses. The Tribunal also put to the applicant independent country information before it and invited the applicant to comment upon it. The Tribunal also identified independent country information to which it had regard. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision record makes clear that the Tribunal reached conclusions based on the findings made by it and to which it applied the correct law.
63.In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.
64.The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding in this Court
The appellant is unrepresented and has appeared today with the assistance of an interpreter. He has filed a written outline of submissions. It would seem that the written outline of submissions substantially reproduces the written submissions that were before the presiding Federal Magistrate. Those submissions challenge the correctness of the findings of fact made by the Tribunal. In an oral submission made today the appellant sought to affirm his contention that the matters stated in the written submissions are correct.
The appellant’s notice of appeal simply repeats the grounds of review in the amended application that was before the Federal Magistrates Court and, in respect of each ground, adds: “The Court below failed to consider this issue.”
None of the grounds in the notice of appeal can be made out. The presiding Federal Magistrate carefully and thoroughly considered each of the grounds in the appellant’s amended application and found that they did not disclose jurisdictional error on the part of the Tribunal. I am unable to discern any error in her Honour’s findings.
It follows that this appeal must be dismissed.
Disposition
The orders of the Court are as follows:
1.The order made earlier today pursuant to r 36.75(1)(a) of the Federal Court Rules 2011 dismissing the appellant’s appeal be set aside pursuant to r 39.04.
2.The appeal 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 Yates. Associate:
Dated: 8 August 2012
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