FEDERAL COURT OF AUSTRALIA

SZBJQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1346

Federal Court of Australia Act 1976 (Cth) s 25(1A)

Migration Act 1958 (Cth) s 424A

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 cited

SZBJQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

NSD 857 OF 2005

HELY J

6 SEPTEMBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The Refugee Review Tribunal be joined as second respondent to these proceedings.

2.         The appeal be dismissed with 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 decision of Driver FM in which his Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) affirming a decision of the Minister’s delegate not to grant the appellant a protection visa.  By direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the appeal is to be heard and determined before a single judge.

2                     The appellant is a citizen of Bangladesh who claimed to fear persecution in Bangladesh because of his involvement with the Jatiya Party.  The RRT did not accept that the appellant was a member of the Jatiya Party because he could demonstrate virtually no knowledge of the Jatiya Party whatsoever.  The RRT described the appellant’s evidence as vague, confused and internally inconsistent, such that it did not consider the appellant to be a credible or reliable witness.

3                     In addition, the RRT:

(a)        found it implausible that as a Jatiya Party member the appellant would leave Bangladesh at a point in time when a neutral caretaker government was in power with elections held shortly thereafter, whereupon a pro-Jatiya government was elected;

(b)        found it implausible that the appellant, if he genuinely feared persecution, would return to Bangladesh within months of the BNP winning a general election, particularly when there was no compulsion to do so;

(c)        found that the appellant gave internally inconsistent evidence.  For example, he claimed at the hearing to have been attacked twice on his subsequent return to Bangladesh but failed to make this claim in his protection visa application and failed to mention during the hearing, until prompted, that he would be arrested if he returned to Bangladesh, despite having put that claim forward in his protection visa application; and

(d)        concluded that the appellant had fabricated his claims in an attempt to fit himself within the definition of a refugee.

4                     Accordingly, the RRT found that the appellant was not owed protection obligations by Australia. 

5                     Driver FM noted that the written submissions lodged on behalf of the appellant in the Federal Magistrates Court did not come to grips with the problem that the appellant’s claim failed before the RRT because of the RRT’s assessment of the appellant’s credibility.  Nonetheless, Driver FM addressed those submissions before concluding that there was no jurisdictional error in the decision of the RRT.

6                     The Notice of Appeal lodged by the appellant with this Court contains bland assertions of error and impermissibly seeks to embark upon a merits review.  The appellant does not provide any details of how it is said that the RRT committed an error of law or denied him procedural fairness nor does he provide any details as to how it is said that Driver FM erred in failing to find these matters.  The RRT did refer to independent country information in relation to the relationship between the BNP and the Jatiya Party following the October 2001 general election in Bangladesh but this was not information which the RRT was obliged to give to the appellant pursuant to s 424A of the Migration Act 1958 (Cth) (‘the Act’) because it was information of the type referred to in subs 424A(3)(a) of the Act.

7                     There is one recognisable ground of appeal contained in the Notice of Appeal and that is ground number three which asserts that the present case is ‘very much similar’ with the decision of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601 (‘Muin’ and ‘Lie’).  There is, however, no substance in this ground as the appellant did not even attempt to establish before Driver FM the necessary factual substratum for a finding of want of procedural fairness which was established by the agreed facts in Muin and Lie.

8                     On 5 September 2005 the appellant filed a document styled ‘Applicant’s Outline of Submission’ which I have placed with the papers.  He tells me that it was a document prepared by one of his friends.  It appears to have been taken from an inappropriate precedent as the outline has little, if anything, to do with the circumstances of the present case.  For example, it asserts that the appellant was an Awami League activist whereas the case which he put to the RRT was that he was a member of the Jatiya Party and it attributed to the RRT a number of findings which the RRT had not made.  It also asserts that the appellant did not attend the RRT hearing whereas it is plain on the face of the RRT’s decision that he did.

9                     There is nothing in the outline which addresses, let alone casts any doubt upon, the RRT’s credibility findings. Apart from the misconceived reliance on Muin and Lie and the non-provision of country information to which I earlier referred, there is no particularisation or exposure of a case that the procedures adopted by the RRT in determining the application were in any way inappropriate or unfair.  When I pointed these matters out to the appellant he sought an adjournment of some two or three months so that he could put in another written submission which did not contain any mistakes. I refused that application as this matter was fixed for hearing on 28 June 2005 and the appellant has had a reasonable time within which to prepare his appeal.  The RRT’s decision was given over two years ago and the appellant has had ample time since then to give consideration to any deficiencies which may exist in that decision.  There was nothing put before me which would indicate that there is any practical utility in a further adjournment. The appellant must simply face up to the fact that he lost his case before the RRT because the RRT did not believe his claims. 

10                  It is the province of the RRT to make assessments as to the appellant’s credibility - it is not a matter for the Courts.  The appeal must be dismissed with costs.

11                  The Minister’s solicitor seeks an order that the RRT be joined as an additional respondent to these proceedings.  She does so because there is a High Court decision which says that the RRT should be joined as a respondent.  I order that the Refugee Review Tribunal be joined as second respondent to these proceedings.

12                  The appeal should be dismissed with costs. 

Associate:

Dated:              22 September 2005