FEDERAL COURT OF AUSTRALIA

SZCIJ v Minister for Immigration & Multicultural Affairs & Anor

[2006] FCAFC 62

Migration Act 1958 (Cth) s 422B

SZCIJ v Minister for Immigartion & Multicultural & Indigenous Affairs [2005] FMCA 1829 cited

Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61 discussed

SZCIJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR

NO. NSD 2640 OF 2005

HEEREY, CONTI & JACOBSON JJ

12 MAY 2006

SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

THE COURT:

1                     The appellant is a citizen of Bangladesh.  Her application for a protection visa was refused by a delegate of the Minister and that refusal was affirmed by the Refugee Review Tribunal.  She sought judicial review in the Federal Magistrates Court.  Her application was dismissed by Driver FM: SZCIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 1829.  She now appeals to this Court.  She submits that the Magistrate was wrong in not accepting her contention that the Tribunal denied her natural justice.

2                     The appellant’s claims before the Tribunal were that she came from a conservative Muslim family, but while at University became a “leading activist” on women’s issues.  However following the completion of her education she was forced to marry a much older businessman who sexually and physically abused her.

3                     In rejecting her claims the Tribunal made a number of findings including:

·        The appellant’s family, although very poor, were willing to give her undergraduate and post graduate education in a “free thinking and free moving environment”;

·        She was not a “leading activist” in women’s issues;

·        She was not forced to marry as a child;

·        She was a very well educated and highly articulate mature woman with an interest in women’s issues and rights with both knowledge and contacts in this area – if she had been abused as she claimed she would have been fully aware of her rights in Bangladesh and known how to seek redress from the appropriate authorities, women’s groups and the like but did not claim to have done so;

·        She did not like her husband and their relationship has been from time to time turbulent;

·        From the unsubstantiated claims made by her and in view of its findings about her credibility, the Tribunal had not been able to satisfy itself either about the extent of her claimed abuse or that it was serious harm amounting to persecution for a Convention reason;

·        It would be reasonable for her to relocate within Bangladesh;

·        She would be able to seek and receive state protection if her husband or anyone else sought to inflict serious harm on her.

4                     The only ground of review pressed before the Magistrate was that the Tribunal made findings on a number of matters which it did not put to her.  These were, first, that there was nothing to prevent her from returning to her family and, secondly, that if abused as she claimed she would have been aware of her rights and known how to seek redress.

5                     Before the Magistrate this failure to put matters to the appellant was said to constitute a denial of procedural fairness or natural justice, and hence jurisdictional error.  Reliance was placed on common law natural justice.  No breach of the procedural requirements of s 424A of the Migration Act 1958 (Cth) was alleged.

6                     The Magistrate, after discussing a number of first instance Federal Court decisions, some of which are in conflict, held that s 422B of the Act excluded the common law natural justice hearing rule.

7                     In another decision handed down today, Minister for Immigration and Multicultural and Indigenous Affairs v Lay Lat [2006] FCAFC 61, we have dealt with the same point in relation to s 51A of the Act, which is the equivalent of s 422B in relation to visa applications at Departmental level (see also s 357A in relation to reviews by the Migration Review Tribunal).

8                     For the reasons given in Lay Lat at [59]-[67] we hold that the common law natural justice hearing rule did not apply.  The appeal will be dismissed with costs.

Associate:

Dated: