SZQUU v Minister for Immigration and Citizenship
[2012] FCA 910
•20 August 2012
FEDERAL COURT OF AUSTRALIA
SZQUU v Minister for Immigration and Citizenship [2012] FCA 910
Citation: SZQUU v Minister for Immigration and Citizenship [2012] FCA 910 Appeal from: SZQUU v Minister for Immigration and Citizenship [2012] FMCA 427 Parties: SZQUU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 779 of 2012 Judge: JACOBSON J Date of judgment: 20 August 2012 Legislation: Migration Act 1958 (Cth), ss 440, 424AA Cases cited: Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630Date of hearing: 20 August 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 19 Counsel for the Appellant: The appellant appeared in person. Counsel for the First Respondent: Mr O Jones of Clayton Utz Counsel for the Second Respondent: No appearance
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 779 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQUU
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JACOBSON J
DATE OF ORDER:
20 AUGUST 2012
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 $1,953 pursuant to r 40.02 of the Federal Court Rules 2011.
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 779 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZQUU
AppellantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
JACOBSON J
DATE:
20 AUGUST 2012
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from orders made by a Federal Magistrate (Smith FM) on 14 May 2012. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal dated 3 October 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa.
The appellant is a citizen of Bangladesh. He claims to have a well-founded fear of persecution on political grounds by reason of his role as a student leader of the Bangladesh Nationalist Party (the BNP) before coming to Australia in 2001.
The background facts are sufficiently set out in the reasons for judgment of the Federal Magistrate, and it is unnecessary to repeat them in full. In summary, the critical issues which led the Tribunal to reject the appellant’s claim were his use of multiple identities in Australia and his delay of eight and a half years in making an application for a protection visa.
As the Federal Magistrate said at [1] of his reasons, the appellant came to the attention of the Department in July 2009 after a “tip off”. Searches of his residence by officers of the Department found a number of identity documents in different names. The documents suggested that he had arrived in Australia in 2001 and had worked for some seven years in a restaurant using a name which the Federal Magistrate described as “SK”. The documents also included a Bangladeshi passport in a name which the Federal Magistrate described by an acronym “SH” which had been issued in 2002 and revalidated in 2008. It contained a photograph and was, on the advice given to the Department, a genuine Bangladeshi passport. The officers also found other documents concealed in a false lining of a suitcase concerning a Bangladeshi person with the identify described by the Federal Magistrate as “SR”.
The Federal Magistrate observed at [9] of his reasons that the Tribunal appears to have followed the relevant procedures, including those under ss 440 and 424AA of the Migration Act 1958 (Cth) in raising with the appellant a number of matters which the Tribunal considered might bear on his credibility. His Honour said at [9] that no issues of denial of procedure fairness were raised in the proceedings, and it was clear that the Tribunal drew attention to particulars of the information which might cause the Tribunal not to believe the appellant.
The substance of the Tribunal’s reasons are set out at [104], appearing at appeal book page 198. The critical passage is set out in full in [13] of the Federal Magistrate’s reasons but, for convenience, I will repeat [104] of the Tribunal’s reasons in full as follows:
For the reasons that follow, the Tribunal finds that the applicant has not given a truthful account of his past experiences in Bangladesh, or a genuine account of his fears of returning there now, or in the reasonably foreseeable future. The applicant has given inconsistent evidence to the Department and to the Tribunal, particularly in relation to his identity. He has used multiple identities in Australia and sought to conceal his real identity from the Department. He gave inconsistent evidence to the Tribunal about the identities he used in Australia and about the reasons for the significant delay of more than 8 ½ years before making the protection visa application. He did not claim he had a fear of persecution when he was first interviewed by the Department.
The Federal Magistrate went on to say that the Tribunal explained its conclusions by recounting the history in which the appellant had come to the attention of the Department, and it rejected the truthfulness of his claims and gave reasons for doing so. His Honour said that the Tribunal explained why it found the appellant’s explanations for the delay not to be credible. Importantly, the Tribunal also rejected a contention raised by a report from a psychologist which stated that the appellant had a “damaged memory”. The learned Federal Magistrate explained at [15] why there were deficiencies in that report.
His Honour also went on at [16] to set out the portions of the Tribunal’s reasons for rejecting the information contained in supporting documentation which included letters from officers of the BNP, as well as a statement from a journalist. That evidence is referred to at [28] to [32] of the Tribunal’s reasons, but the Tribunal explained at, in particular, [117] why it did not accept the information contained in those letters.
The appellant’s grounds of review in the Federal Magistrates Court are set out at [18] of the Federal Magistrate’s reasons. His Honour observed at [20] that no details of an argument formulating an arguable ground of jurisdictional error were provided and that he was unable to identify any such argument. Importantly, his Honour observed at [20]:
It appears to me that the Tribunal’s decision was overwhelmingly open to it on the evidence which was before it…
His Honour went on at [21] and [22] to refer to an affidavit submitted on the appellant’s behalf and to the written submissions which the appellant filed on the day of the hearing. His Honour said that he was unable to identify any failure by the Tribunal to follow procedures under the Migration Act which are designed to allow procedural fairness. His Honour also observed that the effect of what the appellant put to the Federal Magistrates Court appeared to be that it ought to have accepted the letters of support from the officers of the BNP and the journalist.
The Federal Magistrate went on to say at [23] that the Tribunal had taken those documents into account, but was not persuaded by their contents, that it ought to accept the credibility of the applicant’s evidence. The Federal Magistrate observed that this approach revealed no jurisdictional error: see in particular Minister for Immigration and Citizenship v SZNSP (2010) 184 FCR 485.
The appellant raises two grounds of appeal. The first is that the Tribunal “made an error in terms of the applicant’s identity and did not assessed (sic) his position.” The second is that the Tribunal made an error that the application was “not properly considered and the applicant (sic) identity was not assessed accurately.”
The appellant appeared this morning in person without legal representation. He provided me with written submissions and he addressed me orally. The effect of what he put to me today was to repeat his claim that he has a political profile in Bangladesh as a former student leader of the BNP and that he will be persecuted by members of the Awami League which is now in power in Bangladesh if he should return to that country. Indeed, he told me from the bar table that his position is precarious and that he fears that he may be killed or sent to jail if he returns to Bangladesh.
Mr Jones, solicitor who appears for the Minister, submits that the first ground of appeal is new and since it was not raised in the Federal Magistrates Court leave is required to raise it. He submits that the ground does not satisfy the broad test stated by a Full Court in VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158.
However, in my opinion, the first ground of appeal is not new. It falls within the grounds of judicial review asserted in the Federal Magistrates Court. Nevertheless, it seems to me that the asserted ground of appeal must fail essentially for the reasons given by the Federal Magistrate. This is because the Federal Magistrates Court had no power to decide itself whether the refugee claims made by the appellant should have been believed.
The Federal Magistrates Court’s jurisdiction was limited to a power to remit the matter to the Tribunal if it was satisfied that the Tribunal’s decision was affected by jurisdictional error. For the reasons given by the Federal Magistrate, the Tribunal’s decision was not so affected. It is plain that the Tribunal considered all of the matters put to it by the appellant relating to his identity, including the additional evidence to which I have referred.
The second ground of appeal also fails essentially for the reasons given by the Federal Magistrate. The Tribunal was not required to refer to every piece of evidence submitted by the appellant: see WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [46]. In any event, the Tribunal did refer to each of the pieces of evidence provided by the appellant, including his evidence in support of the protection visa application, his oral evidence, and the written statements of support to which I have referred.
As the Federal Magistrate observed, there was no error of the type described by a Full Court in SZNSP at [37] to [39]. Moreover, here the Tribunal did not express itself in the robust terms to which the High Court referred in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 and as the High Court said in that case, in any event the weighing of various pieces of evidence is a matter for the Tribunal.
It follows that notwithstanding any concern or sympathy which I may have for the appellant’s predicament, the question which I must determine on the appeal is a matter of law and I must determine the matter accordingly. It follows for the reasons to which I have referred above, that I can see no error in the reasons of the Federal Magistrate. I will therefore order that the appeal 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 Jacobson. Associate:
Dated: 20 August 2012
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