SZSLE v Minister for Immigration and Citizenship

[2013] FCA 1161

FEDERAL COURT OF AUSTRALIA

SZSLE v Minister for Immigration and Citizenship [2013] FCA 1161

Citation:	SZSLE v Minister for Immigration and Citizenship [2013] FCA 1161
Parties:	SZSLE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):	NSD 1179 of 2013
Judge(s):	GREENWOOD J
Date of judgment:	7 November 2013
Catchwords:	MIGRATION – consideration of an application for leave to appeal from orders of the Federal Circuit Court of Australia
Cases cited:	Décor Corporation Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397 - cited Bienstein v Bienstein (2003) 195 ALR 225 - cited Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 - cited Samsung Electronics v Apple Inc. (2011) 286 ALR 257 - cited
Date of hearing:	6 November 2013
Date of last submissions:	6 November 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	18
Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondents:	Sparke Helmore Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1179 of 2013

BETWEEN: SZSLE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	7 NOVEMBER 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicant pay the costs of the first respondent of and incidental to the application as agreed or assessed. 

3.The title of the first respondent be amended to “Minister for Immigration and Border Protection”. 

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION	NSD 1179 of 2013

BETWEEN:

SZSLE
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GREENWOOD J
DATE:	7 NOVEMBER 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from orders and a judgment made and given by the Federal Circuit Court of Australia on 12 June 2013. 

2. The applicant filed his original application before the Federal Magistrates Court of Australia on 21 December 2012 seeking an order that the Minister for Immigration and Citizenship and the Refugee Review Tribunal (the “Tribunal”) show cause why a remedy should not be granted in the exercise of that Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth). On 17 April 2013, the applicant filed an amended application seeking an order of review in respect of the Tribunal’s decision of 30 November 2012. The applicant sought the grant of the Constitutional Writs in the exercise of that Court’s supervisory jurisdiction.

3. The Federal Circuit Court of Australia made orders under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). That rule provides that at a hearing of the application for an order to show cause, the Court may, if it is not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application. Rule 44.12(2) provides that, to avoid doubt, a dismissal under para (1)(a) is an interlocutory order.

4. The present application is an application for leave to appeal from that interlocutory order:  see s 24(1)(d), s 24(1A) and s 25(2) of the Federal Court of Australia Act 1976 (Cth). The principles to be applied in determining the application for leave to appeal are those principles set out in Décor Corporation Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397 at 398‑400; Bienstein v Bienstein (2003) 195 ALR 225 at [29]; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564 at [43] and [44]; and, most recently, Samsung Electronics v Apple Inc. (2011) 286 ALR 257 at [25] to [32], per Dowsett, Foster and Yates JJ.

5. The grounds of appeal the applicant seeks to agitate, should leave be given, are the same grounds the applicant agitated before the Federal Circuit Court of Australia.  The applicant contends that the Tribunal fell into jurisdictional error by failing to give “reasonable weight” to supporting documents the applicant put before the Tribunal going to the applicant’s involvement in a political party called the “BNP” in Bangladesh and, secondly, the Tribunal failed to assess the “possible chance” of the applicant being persecuted should he return to Bangladesh.  In effect, the applicant contends that the Federal Circuit Court fell into arguable error by failing to find jurisdictional error on the part of the Tribunal, on the grounds contended for by the applicant. 

6. As to the documents the Tribunal is said to have failed to give reasonable weight, they were these:  a letter from “hunger free world” dated 5 January 2011; a letter from “innovation world ltd.  Textile Chemicals” dated 21 June 2011; a letter from the Bangladesh National Party, the author of which is said to be Nazmul Huda Chowdhury (Mithu), under the description “President Shibchar Upazilla B.N.P” dated 4 October 2011; and a letter on the letterhead of “Bangladesh Forazi Jamat” the author of which is said to be Pirjada Mubeen Uddin Ahmed, “Organisational Secretary”, dated 17 October 2011. 

7. The reference to the notion that the Tribunal failed to give reasonable weight to these letters, suggests a contention going to the merits about the reasonableness of the weight rather than a question of whether the letters were considered.

8. Nevertheless, the position is this. 

9. The Tribunal set out in its reasons the claims made by the applicant and the evidence upon which he relied.  The Tribunal had the benefit of listening to a recording of responses by the applicant to various questions put to him by the delegate in which he identified the elements of his claims including the events said to have occurred on 30 May 2011 relating to the attack upon him and others (see para 25(a) to (m) of the Tribunal’s reasons), and the opportunity of hearing the applicant directly and assessing his explanation of various events.  At paras 27 and 28, the Tribunal sets out the elements of Mr Chowdhury (Mithu’s) letter of 4 October 2011 and Mr Ahmed’s letter of 17 October 2011.  At para 29, the Tribunal makes reference to the letter of 21 June 2011 described as the “Salary Statement” of the applicant.  At para 40, the Tribunal refers to the letter of 5 January 2011 from Hunger Free World.  At paras 44 to 47 particularly, the Tribunal notes aspects of the nature of the harassment the applicant is said to have suffered. 

10. In the findings, particularly at paras 54 and 56, the Tribunal makes strong adverse credit findings concerning the version of events put to it.  In relation to the letters, the Tribunal said this at para 58:

    As stated above the Tribunal did not find the applicant a credible witness.  It thus has given no weight to the letters from the BNP and Bangladesh Forazi Jamat.  The letter from Innovation World Limited does not indicate that the applicant was a cyclist or HIV/AIDS awareness campaigner.  The Tribunal gives it no weight.  The letter from Hunger Free World does not indicate that the letter writer or the organisation had an association with the applicant.  It does not specify how the letter writer came to become aware that the applicant was intending to start the bicycle tour referred to nor does the letter indicate that the applicant was a well‑known or popular cyclist or a HIV/AIDS awareness campaigner. It does not appear to relate to the group of cyclists the applicant claimed to have organised for the commemoration on 30 May 2011 [being the date when the attack was said to have occurred].  It is not more than a letter wishing the applicant and two others the best in relation to a particular tour.  The Tribunal thus gives the letter no weight. 

11. At para 59, the Tribunal found that the applicant was not a credible witness and in light of the flaws the Tribunal identified in the applicant’s evidence, the Tribunal found that the applicant was not a member of the BNP or Jubo Dal; did not hold the position of joint secretary of his local Jubo Dal; and did not have any association with the BNP or Jubo Dal.  The Tribunal did not accept that the applicant had organised a large group of people to cycle on 30 May 2011 in support of HIV/AIDS awareness or that the applicant had been beaten, harassed or harmed by members of the Awami League. 

12. It is clear from the Tribunal’s reasons that the Tribunal took into account the applicant’s claims and contentions and formed a view about the applicant’s creditworthiness.  The Tribunal was entitled to reach the conclusions on the factual questions it reached.  The Tribunal, as a question of methodology, was unable to find the letters redemptive of the views it had formed about the applicant’s credit.  It is not correct to say that the Tribunal failed to have regard to the letters.  At para 58, the Tribunal explains why it gave no weight to the letters and in the context of the discussion, the analysis and the credit findings, the Tribunal was entitled to treat the letters in the way it did.  It follows that the findings of the Federal Circuit Court at [6] and [7] of the reasons of Judge Driver of 12 June 2013 reflect no arguable error. 

13. The Tribunal gave consideration to the contended harm the applicant had suffered especially having regard to the contentions concerning the cycle arrangements on 30 May 2011.  Having regard to the Tribunal’s findings about the earlier matters and, in particular, the Tribunal’s rejection of the applicant’s claims that he had organised a large group of people to cycle on 30 May 2011 or that he was beaten, harassed or harmed by members of the Awami League, the Tribunal went on to find that there was no real chance that the applicant or any member of his family would be harmed “by the Awami League, the government, the police or the RAB in the reasonable foreseeable future … for reasons of political opinion or any other Convention ground” should he return to Bangladesh. 

14. It follows that the applicant has not demonstrated an arguable question of whether the Tribunal failed to assess the “possible chance” (or real chance) of whether the applicant would suffer persecution should he return to Bangladesh.  The Tribunal expressly considered that matter. 

15. It also follows that the Federal Circuit Court did not fall into arguable error in finding that there was no substance as to ground 2 of the amended application. 

16. Accordingly, neither of the contended grounds of appeal are arguable. 

17. It also follows that the application for leave to appeal must necessarily be refused with costs. 

18. The title of the first respondent will be amended to “Minister for Immigration and Border Protection”. 

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        7 November 2013