SZVXF v Minister for Immigration and Border Protection

[2017] FCA 1423

FEDERAL COURT OF AUSTRALIA

SZVXF v Minister for Immigration and Border Protection [2017] FCA 1423

Appeal from:	SZVXE & Ors v Minister for Immigration & Anor [2017] FCCA 1271
File number(s):	NSD 1089 of 2017
Judge(s):	JAGOT J
Date of judgment:	24 November 2017
Catchwords:	MIGRATION – appeal from Federal Circuit Court order dismissing an application for judicial review of decision of the Administrative Appeals Tribunal affirming decision of Minister’s delegate to refuse to grant a Protection (Class XA) visa – no appealable error – appeal dismissed
Cases cited:	SZVXE and Ors v Minister for Immigration [2017] FCCA 1271
Date of hearing:	24 November 2017
Registry:	New South Wales
Division:	General Division
National Practice Area:	Administrative and Constitutional Law and Human Rights
Category:	Catchwords
Number of paragraphs:	6
Counsel for the Appellants:	The First Appellant appeared in person on behalf of all the Appellants
Counsel for the Respondents:	G Johnson
Solicitor for the Respondents:	Australian Government Solicitor

ORDERS

NSD 1089 of 2017

BETWEEN:

SZVXF

First Appellant

SZVXE

Second Appellant

SZVXG

Third Appellant

AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	24 NOVEMBER 2017

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The first and second appellants pay the first respondent’s costs of the appeal as agreed or taxed.

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

REASONS FOR JUDGMENT

JAGOT J:

1. This is an appeal against orders of the Federal Circuit Court made on 22 June 2017 dismissing the appellant’s application for review of the decision of the Refugee Review Tribunal.  On 28 November 2014 the Tribunal affirmed the decision of a delegate of the Minister not to grant the appellants Protection (Class XA) visas.  The appellants’ applications for protection visas were founded on the claims of the husband (also the father of the third appellant) to the effect that he is from Bangladesh (which the Tribunal accepted), is a member of the Bangladesh Nationalist Party or BNP, held the position of joint secretary for a district in Bangladesh, and that political opponents would cause him and his family harm if they returned to Bangladesh. 

2. The Tribunal noted in paragraph 12 of its decision record that a variety of documents were filed in support of the application, as well as extensive submissions.  The Tribunal accepted that the first appellant was a supporter of the BNP in the 1990s and an executive member of that organisation in his district at that time.  The Tribunal noted, however, that the first appellant’s political activities were, in the Tribunal’s words at paragraph 21, “remote in time”.  The first appellant, the Tribunal observed, had returned to Bangladesh twice without experiencing any difficulty.  Further, there was no evidence of any political activity by him during his return to Bangladesh or otherwise.  Given this, the Tribunal concluded that he had no current political profile in Bangladesh.  As a result, the Tribunal found that there was no real chance that the first appellant or his family would face persecution for reasons of the first appellant’s political opinions in Bangladesh.  It therefore rejected the first appellant’s claims and as a result also the claims of the other appellants. 

3. The Federal Circuit Court dismissed the application for review of the Tribunal’s decision.  In so doing the Federal Circuit Court gave comprehensive reasons which addressed the 16 subparagraphs of the review application decision (SZVXE and Ors v Minister for Immigration [2017] FCCA 1271). In its reasons for judgment the Federal Circuit Court noted that the Tribunal did not refer to and analyse country information but explained that this omission must be inferred to be because the Tribunal did not consider that information to be material [35]). The reason for this was the finding of a lack of any current political profile on the part of the first appellant. The Federal Circuit Court concluded at [44] that the Tribunal’s inferred view that country information was not material in the circumstances of the case was not illogical or irrational or lacking an intelligible justification.

4. The notice of appeal to this Court contains four grounds as follows:

   (1)The Federal Circuit Court Judge Honourable Dowdy J did not follow the preferred procedure and applicable law that related to the appellants Judicial Review Application when made the decision to dismiss the appellants Judicial Review Application on 22/06/2017.

   (2)The appellants where denied the procedural fairness by the dismissal order made by the Federal Circuit Court Judge.

   (3)The appellant believe that the FCC Judge Dowdy J dismissal order is an improper exercise of the power conferred by the enactment and applicable law.

   (4)My younger son …will be included in this proceeding.

5. Ground 1 does not explain how it is said that the primary judge did not follow “the preferred procedural and applicable law”.  Nor has the first appellant explained today what that paragraph means.  As to ground 2, the alleged denial of procedural fairness by the Federal Circuit Court, it is apparent that the first appellant appeared before the Federal Circuit Court and spoke on behalf of all of the appellants.  There is no basis apparent in the materials for the alleged denial of procedural fairness.  Ground 3 refers to an improper exercise of power by the Federal Circuit Court.  But again there is no explanation of this allegation.  Ground 4 refers to joining his youngest son as part of the proceeding.  However, this child was not part of the proceeding before the Tribunal or the Federal Circuit Court, as is clear from the reasons of the Federal Circuit Court (at [1]). 

6. In oral submissions the first appellant indicated that the Tribunal had not taken account of his country and other information and was wrong about his not being involved in politics, as politics was, in his words, “in his blood”, so he would be subject to persecution, as would his family, if they returned to Bangladesh.  He also said that when he returned to Bangladesh on the two previous occasions his party was in power, which is why he experienced no difficulty, but now the opposition was in power.  These are all factual matters which I am unable to consider given the confined nature of this appeal.  It is apparent that the Tribunal considered the claims on behalf of the appellants but decided that there was no well-founded fear of persecution. In all of the circumstances, I am unable to see any legal error in the Tribunal’s reasoning or process.  Nor can I see any error in the reasons of the Federal Circuit Court. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:        24 November 2017