SZRIX v Minister for Immigration and Citizenship

[2013] FCA 121

FEDERAL COURT OF AUSTRALIA

SZRIX v Minister for Immigration and Citizenship [2013] FCA 121

Citation:		SZRIX v Minister for Immigration and Citizenship [2013] FCA 121
Appeal from:		SZRIX v Minister for Immigration & Anor [2012] FMCA 985
Parties:		SZRIX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1783 of 2012
Judge:		LOGAN J
Date of judgment:		20 February 2013
Catchwords:		IMMIGRATION – refugees – Refugee Review Tribunal – decision of Federal Magistrates Court on judicial review – no jurisdictional error based on failure to address integers of claim – conclusions reached by Tribunal as to credibility and absence of satisfaction as to protection obligation reasonably open – appeal dismissed – Migration Act 1958 (Cth)
Legislation:		Migration Act 1958 (Cth)
Cases cited:		Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 cited Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 cited Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 cited
Date of hearing:	20 February 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	17
Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondents:	Mr T Reilly
Solicitor for the Respondents:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1783 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZRIX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	20 FEBRUARY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs of and incidental to the appeal, to be taxed if not agreed.

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 1783 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZRIX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	20 FEBRUARY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of the People’s Republic of Bangladesh.  He came to Australia on 27 February 2011 and was permitted entry on the basis of his holding a Subclass 676 visa.  On 8 April 2011, the appellant applied in Australia for that class of visa under the Migration Act 1958 (Cth) (Migration Act) which is known as a protection visa. On 29 June 2011, a delegate of the Minister for Immigration and Citizenship decided to refuse to grant a protection visa to the appellant. The Minister is the first respondent to this appeal. On 25 July 2011, as was his right under the Migration Act, the appellant sought the review by the Refugee Review Tribunal (Tribunal) of the Minister’s delegate’s decision. On 23 March 2012, the Tribunal decided to affirm the decision of the Minister’s delegate not to grant the appellant a protection visa.

2. The appellant then sought the judicial review of the Tribunal’s decision by the Federal Magistrates Court.  On 24 October 2012, for reasons which were given that day, the Federal Magistrates Court dismissed, with costs, that judicial review application.  It is from that decision of the Federal Magistrates Court that the appellant now appeals to this Court. 

3. The appellant appeared on his own behalf today.  He made submissions in supplementation of written submissions which he had lodged in advance with the court.  He made his oral submissions, in part, in English and, in part, with the assistance of an interpreter provided by the court.  It was obvious to me in reading his written submissions and in hearing today his oral submissions that the appellant is an intelligent, articulate man.  That is quite consistent with the reference which he makes in his original protection visa application to his having completed tertiary studies in arts.  That said, it was increasingly obvious in the course of the hearing today that the appellant, understandably enough, had difficulty in appreciating the nature of the jurisdiction which this court is required to exercise.  One way of highlighting that is to record that the notice of appeal does not, as was correctly submitted on behalf of the Minister, engage with the decision and reasons for judgment of the Federal Magistrates Court.  Instead, it repeats the grounds of challenge made in the Federal Magistrates Court to the decision of the Tribunal. 

4. As a matter of fairness, and because of the wider consequences that can attend decisions in refugee claim cases, I have treated the notice of appeal as if the grounds were bases upon which the appellant alleges the federal magistrate should have found jurisdictional error on the part of the Tribunal.  In other words, I do not propose to dismiss the appeal on the basis that the notice does not meaningfully engage with error on the part of the Federal Magistrates Court.  Instead, what I shall do is to address whether, having regard to the grounds in the notice of appeal, the Federal Magistrate should have concluded that jurisdictional error attended the Tribunal’s decision.

5. In summary, and reading the notice of appeal that way, there are three grounds put forward as to why the Federal magistrate ought to have concluded that the Tribunal’s decision was attended with jurisdictional error.  They are:

   1.That the Tribunal failed to assess the appellant’s claim in respect of persecution on the basis of his political involvement with the BNP in Bangladesh.

   2.That the Tribunal had failed to assess his claim in respect of persecution on the basis of his political involvement with the BNP in Australia.

   3.That the Tribunal had failed to differentiate between two letters, one earlier in time and then a subsequent one issued by a particular barrister in Bangladesh, Mr Huda and Mr Alam and had failed to give weight to those letters.

6. The federal magistrate did address each of these grounds as put forward in the judicial review application.  Did he, in addressing them, err in law?

7. It would be a jurisdictional error if the Tribunal had failed to address what is termed in some of the cases in this area of law an “integer”, of the appellant’s claim for refugee status.  In other words, it would be a jurisdictional error if the Tribunal had failed to address the basis upon which an applicant claimed to have met the criteria upon which a protection visa could be granted.

8. The federal magistrate was, having regard to para 27 and para 28 of his reasons for judgment, aware that a failure on the part of the Tribunal to address the basis of an application for a protection visa could amount to jurisdictional error.  It is not possible to read those paragraphs in his Honour’s decision otherwise than on the basis of such an awareness.  The conclusion reached by the federal magistrate was that the Tribunal had indeed addressed the basis of the claim made by the appellant.  It was just that the Tribunal had made a value judgment in addressing the claim as to the extent to which the Tribunal believed the appellant. 

9. The federal magistrate in this part of his reasons for judgment drew particular attention to paragraph 120 of the Tribunal’s decision. What the Tribunal there stated was this:

   The Tribunal has considered the totality of the applicant’s circumstances and his claims individually and cumulatively.  For the reasons given above, the Tribunal does not accept that the applicant was an Executive member of the BNP Dhaka District committee or the Dohar Thana Committee, or that he was targeted because he played any leadership role in the BNP, or because he was a grassroots worker for the BNP.  The Tribunal has found that at best, the applicant was a low level grassroots worker of the BNP.  The Tribunal has found that the applicant has greatly exaggerated his involvement in the BNP, he has fabricated his claim that he was attacked in 2011 and that there is a false case against him.  The Tribunal does not accept that there is any arrest warrant for the applicant or that he is of adverse interest to the police or the authorities.  The Tribunal does not accept that the applicant was a committed and active member of the BNP at the time he left Bangladesh.  Independent information indicates that the BNP is the major opposition party in Bangladesh.  The Tribunal is not satisfied that there is a real chance that the applicant would be persecuted should he choose to continue with any involvement he may have had in the BNP or associated organisations on his return to Bangladesh. The Tribunal does not accept on the evidence before it that there is a real chance that the applicant will be attacked, arrested or targeted by the police or the Awami League, or otherwise persecuted for reasons of his political opinion, or for any other Convention reason, if he returns to Bangladesh now or in the reasonably foreseeable future. 

10. When one does explore the “reasons given above” in the Tribunal’s reasons, one finds there a comprehensive engagement by the Tribunal with the appellant’s claim for a protection visa.  In particular, there is an addressing by the Tribunal of letters which were provided by the appellant in respect of his BNP membership.  As to one of those letters, that is a letter purportedly signed by Mr Alam, dated 16 April 2011, the Tribunal initiated inquiries via Australia’s Department of Foreign Affairs and Trade with Mr Alam.  The advice communicated by that department to the Tribunal was that upon inquiry, Mr Alam had advised that although he knew the appellant, the letter dated 16 April 2011 was a fake.  More particularly, he stated that although the format and seal on the letter were his, the signature was a fake.  That information, together with a comparison between the contents of that letter of 16 April 2011 and a later letter of 13 March 2012, apparently signed by a Mr Huda, proved influential in the Tribunal’s assessment of what, if anything, to believe of the basis upon which the appellant stated both, originally and when appearing before the Tribunal, as to his involvement with the BNP in Bangladesh. 

11. Findings as to credibility are peculiarly matters for the Tribunal.  There is nothing illogical or irrational in the way in which the Tribunal has ultimately come to a conclusion that it was not satisfied that the appellant was a person to whom Australia owed a protection obligation. 

12. The federal magistrate’s conclusion at para 28 of his reasons for judgment that there was no residual refugee claim which survived the Tribunal’s adverse conclusions concerning the applicant and which the Tribunal had failed to address was, in my view, correct.  The Tribunal did address the claim as made. 

13. The second ground of appeal puts in issue whether the federal magistrate ought to have concluded that the Tribunal had failed to address a separate aspect of the appellant’s claim, namely, that based on involvement with the BNP in Australia.  The difficulty about that is that that was not a basis for the claim although, undoubtedly, there was reference to that involvement in the hearing before the Tribunal. 

14. Further, the appellant put before the Tribunal a letter from an official of the BNP in Australia attesting to his involvement with the BNP here.  The Tribunal did not ignore that aspect of the appellant’s evidence.  I agree with the federal magistrate’s observation at para 29 that a claim based on Australian BNP involvement was not made.  It is, as the federal magistrate observed at paragraph 30 of his reasons, obvious from para 119 of the Tribunal’s reasons that it did nonetheless take into account that involvement in terms of assessing what consequences might attend the appellant in the future were he to return to Bangladesh.  The Tribunal’s conclusion there which was based on its acceptance that the appellant was a grass roots worker in Bangladesh, as well as an acceptance of his involvement in BNP activities in Australia, was that there was not a real chance that the applicant would be persecuted if he were to return to Bangladesh.  That was a conclusion reasonably open to the Tribunal.  The federal magistrate was correct in concluding that ground 2 before the Federal Magistrates Court was not shown to give rise to any jurisdictional error on the part of the Tribunal. 

15. Ground 3 is peculiarly directed to whether or not there was any error in the way in which the Federal Magistrates Court dealt with the Tribunal’s assessment of the two letters which I have mentioned and their ramifications in respect of credibility.  The Tribunal’s assessment of those letters and its overall assessment of those letters in the context of other evidence before it, including that from Australia’s Department of Foreign Affairs and Trade was not, as I have already observed, irrational or illogical. The federal magistrate’s conclusion made by reference materially to the Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 that the Tribunal’s reasoning process did not give rise to jurisdictional error in the circumstances of this case, was correct.

16. Furthermore, the federal magistrate’s later conclusion at para 32 of his Honour’s reasons for judgment was that this was not a case where, having regard to what was said on the subject by the High Court in Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 and Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594, there was any obligation on the part of the Tribunal to initiate further inquiries of its own motion in relation to the authenticity in particular of the second letter. His Honour did not deny that particular circumstances could give rise to an obligation but, rather, concluded that this was not a case where the circumstances required the Tribunal to make such an inquiry. I agree that this was not a case where a further inquiry was obligatory on the part of the Tribunal. Rather, this is a case where it was for the appellant to put his best case forward at the time when an opportunity was extended to him under the Migration Act to do that. That time was the period up to and including the hearing conducted by the Tribunal. It is also to be remembered that the Tribunal did make an inquiry, the inquiry in respect of the first letter. It put the appellant on notice as to the results of that inquiry and the possible adverse ramifications for his claim of those results. It was for the appellant to deal with that notice as best he could before the Tribunal gave its decision.

17. In short then, even approaching this appeal on the perhaps benevolent basis upon which I have determined to do that, there is no merit in law in the grounds advanced.  The appeal must therefore be dismissed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:       22 February 2013