FEDERAL COURT OF AUSTRALIA

SZFJH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1156

SZFJH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 804 OF 2005

MOORE J

28 JULY 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.  The appeal be dismissed.

2.  The appellant pay the respondent's costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a judgment of a Federal Magistrate of 28 April 2005, dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal").  On 8 December 2004, the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Multicultural and Indigenous Affairs to refuse to grant the appellant a protection visa. 

2                     The appellant is a national of Bangladesh.  He based his claims for a protection visa on two grounds.  The first concerned his political opinion.  He had claimed before the Tribunal to have been involved in the activities of the Awami League and he was at risk of persecution, because of his political opinion, were he to return to Bangladesh. 

3                     In substance the Tribunal concluded that while he had engaged at some low and insignificant level in political activities for the Awami League, he did not have the political profile that he claimed.  Accordingly, the Tribunal concluded that he had neither a genuine nor a well founded fear of persecution based on his political opinion.

4                     The second basis upon which the appellant sought a protection visa concerned his sexuality.  He claimed to be a homosexual and, therefore, relevantly a member of a particular social group.  He claimed that were he to return to Bangladesh, he was at risk of persecution by virtue of his membership of that group.  In substance, the Tribunal rejected his assertion or claim that he was homosexual.  Indeed, the Tribunal concluded that was a recent invention designed to enhance his claim for a protection visa.  The Tribunal ultimately found, as a matter of fact, the appellant was not a member of a particular social group, being homosexuals in Bangladesh.

5                     In the proceedings before the Federal Magistrate, there was no real attempt to identify jurisdictional error on the part of the Tribunal.  The Federal Magistrate discussed in greater length than I have to this point, the nature of the claims made by the appellant and the way the Tribunal dealt with them.  The Federal Magistrate noted, and I agree, that the appellant failed because of the view the Tribunal took about his credibility. 

6                     I have read the reasons for decision of the Tribunal.  I have also read the reasons for judgment of the Federal Magistrate.  It is not apparent to me that there was any jurisdictional error on the Tribunal's part.  The Federal Magistrate did not err in also concluding that there was no jurisdictional error.

7                     I should note that I have refused an application for an adjournment made by the appellant.  That application was made on the basis that the appellant needed more time to retain the services of a lawyer to assist him.  While I am conscious of the position the appellant is in, he does not speak English and almost certainly is unfamiliar with the Australian legal system, his attempts to obtain legal representation only occurred two days ago, and even then they occurred through a friend.  It is by no means certain that were the matter adjourned, legal representation would be forthcoming and, in any event, the appellant has had sufficient time to organise legal representation from the time the notice of appeal was filed, which was 18 May 2005.

Associate:

Dated:              23 August 2005