FEDERAL COURT OF AUSTRALIA

SZFXC v Minister for Immigration & Citizenship [2007] FCA 381

MIGRATION - appeal from a decision of a Federal Magistrate - no point of principle

Held: Appeal dismissed

Migration Act 1958 (Cth) s 424A

SZCIA v MIMA [2006] FCA 238 cited

SZEZI v MIMIA [2005] FCA 1195 cited

SZFXC v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD2347 OF 2006

COLLIER J

19 MARCH 2007

BRISBANE

THE COURT ORDERS THAT:

1.                  The name of the first respondent be amended to read Minister for Immigration and Citizenship.

2.                  The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an appeal against the decision of Emmett FM delivered 10 November 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

2                     The appellant is a citizen of Bangladesh who arrived in Australia on 15 October 2000 and lodged an application for a protection visa with then Department of Immigration and Multicultural Affairs on 23 August 2004.

3                     In his application for a protection visa the appellant claimed to have a well founded fear of persecution owing to his political opinion due to his involvement in student politics, in particular as a member of the Awami League. The appellant claimed that the Bandgladeshi Nationalist Party (BNP) made trouble for the Awami League during student elections. The appellant claims he was beaten by a BNP member, and that arms were placed in the appellant’s home by the BNP to show that he carried illegal arms as a student leader. The appellant claims that as the BNP are in power, the leader is taking revenge on the appellant and his family. The appellant claims he has been harassed, his brother beaten and he has been sent death threats. The appellant claims the police are not assisting him or his family because the police are controlled by the BNP.

4                     On 31 August 2004 a delegate of the first respondent refused the appellant’s application for a protection visa. On 27 September 2004 the appellant applied to the Tribunal for a review of that decision. On 17 November 2004 the Tribunal sent the appellant a letter to his nominated address advising that the Tribunal was unable to make a decision in favour of the appellant on this information alone, and invited the appellant to attend a hearing on 24 January 2005. The Tribunal also attempted to contact the appellant on the mobile number provided but was advised that the number provided was disconnected. The appellant did not return a response to the hearing invitation form and did not appear at the hearing.

THE DECISION OF THE TRIBUNAL

5                     Following the failure of the appellant to appear at the hearing the Tribunal proceeded to determine his claims pursuant to s 424A Migration Act 1958 (Cth) (“the Act”). The Tribunal found that it was not satisfied that the appellant would suffer convention-based persecution if he returned to Bangladesh. The Tribunal stated that the appellant had made claims of a very general nature and had provided very little specific information. The Tribunal found that there was very little evidence to support the claims that the appellant had previously suffered Convention-based persecution.

6                     The Tribunal also noted that the appellant did not apply for a protection visa until four years after he arrived in Australia and that this may be an indication that he was not in fear of serious harm when he came to Australia in 2000. Having considered the evidence, the Tribunal found it could not be satisfied that there is a real chance the appellant would be persecuted for a Convention reason if he returned to Bangladesh.

GROUNDS BEFORE THE FEDERAL MAGISTRATE

7                     On 15 March 2005 the appellant applied for judicial review of the decision of the Tribunal. In an amended application filed in the Federal Magistrates Court on 9 June 2005, the appellant claimed the Tribunal failed to understand the criteria of the protection obligation and that the Tribunal unreasonably made some observations about the delay in filing an application leading to the Tribunal rejecting the claims of the appellant which resulted in procedural unfairness, jurisdictional error and the decision being made in bad faith.

DECISION OF THE FEDERAL MAGISTRATE

8                     Emmett FM, in considering the Tribunal’s decision in light of the claims made by the appellant, found that it was difficult to understand the first ground of appeal. The Tribunal decision was based on lack of satisfaction with the claims, founded on the lack of evidence. The Federal Magistrate asserted it was not for the Tribunal to make the case of the appellant but rather it is for the appellant, to satisfy the Tribunal that the criteria for the granting of a protection visa are met. The first ground was rejected.

9                     In relation to the second ground, the observation of the Tribunal concerning the failure of the applicant to apply for a protection visa for four years after his arrival in Australia was simply on observation from which no finding was made. An observation by itself does not reflect jurisdictional error. The allegation of bad faith was similarly rejected as no bad faith was apparent from the words of the Tribunal.

APPEAL TO THIS COURT

10                  The notice of appeal to the Federal Court filed 30 November 2006 raises the following grounds:

1. The Federal Magistrate did not consider that the Refugee Review Tribunal made an error of law which constitute jurisdictional error when it rejected my claims.

2. The Honourable Federal Magistrate did not find out that the Tribunal denied the appellant natural justice when it made the decision.

(Transcribed from the original without alteration)

11                  The appellant did not file any written submissions in this matter and at the hearing of the appeal before me the appellant indicated that he did not wish to make any oral submissions. The appellant sought to rely on the material provided in his notice of appeal. I note that the notice of appeal did not provide any particulars of the grounds of appeal.

12                  The respondent filed written submissions on 1 February 2007, which were relied on during the hearing.

13                  In summary those submissions were that the reason for the Tribunal’s decision was that the Tribunal, having read all the material and having evaluated its content and weight was unable to reach the specified mental state; that is the Tribunal was not satisfied that the appellant had a well founded fear of persecution because of subjectively perceived inadequacies in the information (SZCIA v MIMA [2006] FCA 238 per Allsop J at [12]; SZEZI v MIMIA [2005] FCA 1195 per Allsop J at [29]). This was a finding open to the Tribunal and no error can be found in the approach of the learned Federal Magistrate.

14                  At the hearing, the respondent also submitted that:

·                    In observing that the applicant had not applied for his protection visa for four years after his arrival in Australia the learned Federal Magistrate was not making a finding that the applicant did not have a subjective fear of persecution when he arrived. This observation might have been an indicator of that fact and if the appellant had attended the hearing before the Tribunal that could have been raised with him, however it was not a finding of fact made by the Tribunal and therefore not reviewable.

·                    That the appellant did not attend the Tribunal hearing does not assist the appellant to identify any jurisdictional error. Further, this was not raised before the Federal Magistrate.

FINDINGS OF THIS COURT

15                  As indicated above the grounds of appeal are not particularised and in the absence of any submissions by the appellant it is difficult to understand the appellant’s complaint other than that the Federal Magistrate did not find in his favour. No particulars of the alleged jurisdictional error or denial of natural justice are given.

16                  In my view, there is no error is the decision of Emmett FM. Her Honour was correct to conclude that the conclusions of the Tribunal were open to it on the evidence and material before it and that the Tribunal’s decision was not affected by jurisdictional error Reasons for Decision (at [30]).

THE COURT ORDERS THAT:

1.                  The name of the first respondent be amended to read Minister for Immigration and Citizenship.

2.                  The appeal be dismissed with costs.

Associate:

Dated:         16 March 2007