FEDERAL COURT OF AUSTRALIA

SZFYG v Minister for Immigration & Citizenship [2008] FCA 823

Migration Act 1958 (Cth)

Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464

SXRB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1222

SZALW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1690

Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24

Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244

SZFYG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 412 of 2008

EDMONDS J

3 JUNE 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs fixed in the sum of $2,000.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

Introduction

1                     This is an appeal from the Federal Magistrates Court ([2008] FMCA 443) dismissing an application for review of a decision of the second respondent (‘the Tribunal’) affirming a decision of a delegate of the first respondent (‘the Minister’) refusing an application for a protection visa.

Background

2                     The appellant, a citizen of Bangladesh, arrived in Australia on 25 April 2004.  On 17 May 2004, the appellant lodged an application for a protection (Class XA) visa.  The appellant claimed to fear persecution in Bangladesh based on his political beliefs and activities.

3                     On 17 August 2004, a delegate of the first respondent refused to grant the appellant a protection visa and on 8 September 2004 the appellant applied to the Tribunal for a review of that decision.  The Tribunal affirmed the delegate’s decision and the appellant applied to the Federal Magistrates Court for judicial review of the Tribunal’s decision.  On 29 March 2006, the Federal Magistrates Court dismissed the application due to the appellant’s non-attendance at Court.  Subsequently, on 3 May 2007, the Federal Magistrates Court, by consent, quashed the Tribunal’s decision and remitted the matter to the Tribunal for re-determination.

4                     By letter dated 11 May 2007, the Tribunal informed the appellant that his case had been remitted for reconsideration and invited him to provide any documents or written arguments that he wished the Tribunal to consider which had not yet been provided.

5                     By facsimile dated 31 May 2007, and in accordance with s 424A of the Migration Act 1958 (Cth) (the ‘Act’), the Tribunal provided the appellant with particulars of certain information which, subject to the comments provided by the appellant, would be the reason or part of the reasons for the Tribunal deciding that the appellant did not have an entitlement to a protection visa.  The Tribunal’s facsimile informed the appellant that the Tribunal had before it the file from the Department of Immigration and Multicultural and Indigenous Affairs (the ‘Department’) (including his application for a protection visa) and the Tribunal’s file.  The appellant was informed that the information particularised in the facsimile was relevant because the Tribunal might find that it had doubts about the genuineness of the information the appellant had provided in his application and doubts as to the appellant’s overall credibility.

6                     The appellant was invited to, and did, attend a hearing before the Tribunal on 9 August 2007.  Prior to the hearing, the appellant’s authorised recipient submitted further information to the Tribunal.

The Tribunal’s Decision

7                     On 28 August 2007, the Tribunal handed down its decision in which it affirmed the delegate’s decision.

8                     The Tribunal accepted that the appellant was a citizen of Bangladesh.  However, the Tribunal found that the appellant’s evidence was extremely vague and lacking in credibility.  Based on this finding and the appellant’s lack of knowledge about various matters relating to the background, policies and objectives of the Awami League and the Bangladesh Nationalist Party (‘BNP’), the Tribunal concluded that the appellant had not been involved in student politics in Bangladesh.  The Tribunal further found that the appellant had never been an office holder, member or a political activist of either the Awami League or the Chattra League.

9                     The Tribunal noted the appellant’s claims that he had been an active member of the Awami League since his arrival in Australia, but the Tribunal decided not to place any weight on this evidence on the basis of its other findings (including those about his lack of knowledge about the Awami League) and concluded that the evidence had been submitted to embellish the appellant’s claims.  The Tribunal was not satisfied that the appellant had held a political profile either in Bangladesh or in Australia.

10                  Having considered the appellant’s evidence as a whole, the Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention.

The Federal Magistrates Court

11                  On 25 September 2007, the appellant filed an application for judicial review in the Federal Magistrates Court.

12                  On 12 March 2008, Scarlett FM rejected the grounds of review pleaded in the appellant’s application.  His Honour also rejected other grounds (to the extent that they were grounds) raised in the appellant’s written submissions that had been filed in the Federal Magistrates Court.  His Honour further held that there was no other identifiable error in the Tribunal’s decision and concluded that the Tribunal’s decision was a privative clause decision under s 474 of the Act and dismissed the application.

The Appeal to this Court

13                  On 8 April 2008, the appellant filed a notice of appeal in this Court.  The appellant raises four grounds of appeal:

‘(1)      The [Tribunal] made a jurisdictional error in deciding the claim of the Appellant and the Federal Magistrate made an error of law by not finding this. [‘Ground 1’]

(2)               The Federal Magistrate made error of law by not finding that the [Tribunal] made jurisdictional error by not considering the integer of the appellant’s claim.  Particularly, a false case was fled against the appellant prior to his leaving the country of origin.  [‘Ground 2’]

(3)               The [Tribunal] made a jurisdictional error not to [sic] considering the appellant’s activities in Australia, which is the subject to [sic] persecution upon returning to Bangladesh.  The Federal Magistrate made an error of law by not finding this.  [‘Ground 3’]

(4)               His Honour erred by treating [sic] the [Tribunal] escaped from not to [sic] considering the relevant information / documents in regards to this matter. [‘Ground 4’]’

14                  The appellant seeks, amongst other things, an order setting aside the orders of the Federal Magistrates Court, an order quashing the Tribunal’s decision and an order remitting the matter to the Tribunal for re-determination according to law.

15                  The appellant filed a written outline of submissions but declined to make any further submissions, either in support of the written outline or otherwise, upon being invited to do so on the hearing of the appeal.

16                  For the reasons set out below, each of the appellant’s grounds of appeal must fail.

Ground 1

17                  The appellant did not press this ground of appeal.  It is vague and no particulars have been provided of the errors alleged to have been made by Scarlett FM or the Tribunal.  The appellant has not pointed to, with any degree of precision, the specific error which his Honour is alleged to have made.  In those circumstances, Ground 1 must fail.

Ground 2

18                  The appellant alleges that his Honour fell into error by failing to find that the Tribunal had erred in failing to consider an ‘integer’ of the appellant’s claims, namely, that false charges had allegedly been filed against him in Bangladesh.

19                  His Honour accepted the Minister’s submissions that a claim that the Tribunal has failed to consider an ‘integer’ of an appellant’s claim is, in substance, a claim that the Tribunal has failed to take into account a ‘mandatorily’ relevant consideration: see Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244 per Allsop J at [52].  His Honour agreed that nothing in the Tribunal’s reasons discloses that it did not take into account a ‘mandatorily’ relevant consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 (see Htun at 194 ALR 244 at [52]).

20                  His Honour also agreed with the Minister’s submission that it is important that a clear distinction be drawn between, on the one hand, an ‘integer’ of an appellant’s claim (which is a ‘mandatorily’ relevant consideration) and, on the other hand, the items of evidence relating to that ‘integer’ or claim: see NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 195 ALR 207 at [58].  The two are different and must be clearly delineated.

²¹                    His Honour held that, in effect, the appellant’s complaint was that the Tribunal had failed to consider one piece of evidence relating to an integer of his claim, and that it may be said that the appellant’s real contention was that the Tribunal had allegedly failed to consider one item of favourable evidence: see SZALW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1690 at [18].

22                  His Honour concluded that the appellant’s complaint was factually incorrect as it was clear that the Tribunal had considered the appellant’s evidence about the false charges laid against him by the BNP.  His Honour further held that, even if the Tribunal had not specifically considered this one item of evidence, no jurisdictional error was raised.  In this regard, his Honour referred to and relied on the observations of Lander J in SXRB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1222 at [32]:

‘The failure to consider a piece of evidence does not necessarily amount to a failure to consider an integer of an applicant’s claim for an entitlement to a visa.  Whether it will or not will depend upon whether it is the only or the overwhelming evidence relating to that integer.’

23                  His Honour noted that there were many items of evidence that were presented on the basis that they cumulatively established the appellant’s well-founded fear of persecution and again concluded that, even if there was a failure to consider one item of evidence, there was no jurisdictional error.

24                  The Minister submitted that there was no error in his Honour’s reasoning or findings.  In further support of his Honour’s findings, the Minister noted that the Tribunal expressly stated that it had considered the appellant’s evidence ‘as a whole’, which necessarily involved consideration of the materials that the appellant had submitted.  The fact that the Tribunal did not refer to this evidence specifically in its written reasons does not constitute jurisdictional error: see SZALW at [18].

25                  I agree with these submissions and it follows that Ground 2 must fail.

Ground 3

26                  The appellant alleges that his Honour fell into error by failing to find that the Tribunal had erred in not considering the appellant’s protest activities in Australia which would allegedly cause him to suffer persecution in Bangladesh.

27                  His Honour found that the appellant’s claim was factually incorrect as the Tribunal had clearly considered the appellant’s evidence.  The Minister submitted that there was no error in his Honour’s finding.

28                  In support of his Honour’s finding, the Minister submitted that the Tribunal’s decision record clearly indicates that the appellant was given an opportunity to present evidence in relation to his alleged Australian protest activities.  The decision record also clearly indicates that the Tribunal considered these claims.  Ultimately, the Tribunal placed no weight on this evidence on the basis that, amongst other things, the appellant lacked knowledge about the activities of the Awami League and the Chattra League and did not hold a political profile either in Bangladesh or in Australia.  Acceptance and rejection of evidence, and the weight that should be given to such evidence was entirely a matter for the Tribunal as it considered appropriate: Lee v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 464 at [27]­.

29                  I agree with these submissions and it follows that Ground 3 must also fail.

Ground 4

30                  The appellant’s written outline did not deal with this ground.  As with Ground 1, Ground 4 is vague and no particulars have been provided of the errors alleged to have been made by his Honour or the Tribunal.  In those circumstances, Ground 4 must also fail.

Conclusion

31                  The appellant has not demonstrated any error on the part of Scarlett FM that would lead to the conclusion, contrary to his Honour’s findings, that the Tribunal failed to exercise or exceeded its jurisdiction.

32                  The appeal must be dismissed with costs.

Associate:

Dated:         3 June 2008