FEDERAL COURT OF AUSTRALIA

SZMSW v Minister for Immigration and Citizenship [2009] FCA 576

SZMSW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 291 of 2009

COWDROY J

1 JUNE 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The Appellant pay the costs of the First Respondent.

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

1                     The appellant appeals from the decision of Smith FM delivered on 19 March 2009 which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 19 August 2008. The Tribunal’s decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) to refuse to grant a protection (Class XA) visa to the appellant.

BACKGROUND

2                     The appellant is a citizen of Bangladesh. On 18 January 2008 the appellant lodged an application for a protection visa with the Department of Immigration and Citizenship. A delegate of the Minster refused the application for a protection visa on 28 March 2008. On 24 April 2008 the appellant applied to the Tribunal for a review of that decision.

3                     Before the Tribunal, the appellant claimed to fear persecution in Bangladesh due to his membership of the Awami League (‘AL’). The appellant claimed to be a seaman who intermittently returned to Bangladesh. He claimed that he was severely beaten during a protest rally in 1995 when he was a member of the AL’s student arm, the Jubo League; that he was injured during two separate attacks by Bangladesh National Party (‘BNP’) members in early 2005; that he was beaten by police due to his participation in a AL rally in September 2006; and that he was arrested and tortured by the police in January 2007 on a false charge of arms possession. The appellant feared he would be killed if he were to return to Bangladesh.

THE TRIBUNAL DECISION

4                     The Tribunal did not believe the appellant’s account of past events in Bangladesh for two reasons, noting first that his answers when questioned on the topic were vague and unsatisfactory and second that he had never applied for protection in a third country despite his extensive travels as a seaman. In relation to the former, the Tribunal noted that the appellant had been unable to provide clear details of events in which he was involved during the 2001 election, and had generally provided vague responses regarding his other past activities. It further noted that the two letters written on the letterhead of Bangladesh Awami Jubo League dated 20 May 2008 (‘the two letters’) provided by the appellant in support of his claims were phrased in almost identical terms and did not appear to be reliable. The Tribunal did not dismiss them as forgeries, rather the Tribunal found that their evidentiary value did not outweigh the issues which the Tribunal otherwise had with the appellant’s evidence. The Tribunal did not accept that the appellant was a member of the AL or that he had suffered any associated persecution in Bangladesh.

APPLICATION IN THE FEDERAL MAGISTRATES COURT

5                     By application filed in the Federal Magistrates Court of Australia on 12 September 2008 the appellant sought judicial review of the Tribunal’s decision.

6                     As summarised by Smith FM, the appellant’s application raised four unparticularised grounds of review, namely failures by the Tribunal in relation to natural justice; ‘error of law being jurisdictional error in that it did not put any weight to the relevant facts and/or of the document’; ‘reliance on the irrelevant materials and/or questioned with unnecessary matters’; and acting in excess of jurisdiction.

7                     Smith FM did not consider that the application raised any meaningful contention of jurisdictional error beyond the arguments more clearly set out in the appellant’s outline of submissions. The outline of submissions claimed that there were three errors in the Tribunal’s decision. First, that the Tribunal failed to give any weight to the two documents the appellant provided in support of his claims and should have checked the authenticity of such documents; secondly, the Tribunal erred in that on the cumulative weight of the evidence it was not open to the Tribunal to reach its conclusion regarding the appellant’s credibility insofar as it was based on the appellant’s lack of knowledge regarding the 2001 incident; and thirdly that the Tribunal erred in finding that there was not a real chance of persecution on the basis of the appellant’s political activity if the appellant were to return to Bangladesh.

8                     In relation to the first claim, Smith FM noted that this was not an instance in which the Tribunal rejected documents as forged or fraudulent. Rather, it discounted the evidentiary value of the letters solely on grounds of weight, based both on a finding that it was difficult to believe that four purported witnesses had actual knowledge of the matters asserted in the letters and further that there was general information before the Tribunal that such letters of support were readily available without the signatories having actual knowledge of the facts asserted in such letters. After such finding, the Tribunal found that the low evidentiary value of the documents did not outweigh other evidence undermining the appellant’s credibility.

9                     In his Honour’s opinion, the Tribunal's finding with regard to the letters of support was within the category of authorities which has found that there is no failure of procedural fairness or other jurisdictional error in a Tribunal's reasoning where it finds that corroborative evidence did not outweigh credibility concerns in an applicant’s own evidence citing SZMDS v Minister for Immigration and Citizenship and Another (2009) 107 ALD 361 and WAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 225 at [70].

10                  Further, in relation to a claim by the appellant that the Tribunal failed to initiate inquiries in Bangladesh regarding the authenticity of the two letters, his Honour could not identify any basis for bringing the proceedings before the Tribunal within the exceptional cases where such a duty can arise, comparing the proceedings before him to those in Minister for Immigration and Citizenship v Le and Others (2007) 164 FCR 151 at [77]; SZJBA v Minister for Immigration and Citizenship and Another (2007) 164 FCR 14 at [59]-[60]; and SZIAI v Minister for Immigration and Citizenship (2008) 104 ALD 22 and citing SZICU v Minister for Immigration and Citizenship (2008) 100 ALD 1 at [29] and Wecker v Secretary, Department of Education, Science and Training (2008) 168 FCR 272 at [110] in favour of his contention.

11                  In relation to the second claim, Smith FM noted that other decision makers might not have drawn as much from the flaws in the appellant’s recollection of events in 2001. However, his Honour believed that the Tribunal’s finding on credibility was based on a broader assessment than the appellant’s answers in relation to that one incident. Further, he noted that the Tribunal's second general reason for disbelieving the appellant, based on his history of travel overseas without an apparent fear of return to Bangladesh and without making refugee claims, was a rational and logical basis upon which to assess credibility. Generally, his Honour found, the material before the Tribunal allowed it to form an adverse opinion about the appellant's credibility.

12                  In relation to the third claim, Smith FM accepted the submission of counsel for the Minister that the appellant’s argument essentially did not rise higher than an invitation to the Court to assess for itself ‘the reality of my future persecution in Bangladesh’. His Honour found that the Tribunal had undoubtedly addressed the refugee claims which were before it, and arrived at a conclusion based on the credibility of the claimed history giving rise to the appellant’s claim that he feared to return. The Federal Magistrate found that the possibility that other Tribunals might have arrived at different opinions about that issue, or that the Court itself might arrive at a different conclusion if it investigated the truth of the appellant's claims, did not show that the Tribunal made a decision affected by jurisdictional error.

13                  Having found no jurisdictional error in the decision of the Tribunal, Smith FM dismissed the application for judicial review.

APPEAL TO THIS COURT

14                  On 8 April 2009 the appellant filed in this Court a Notice of Appeal from the decision of Smith FM. The appellant claims that:

1.         The Refugee Review the [sic] Tribunal did not put any weight to the following documents when consider my claims that

a.    A copy of letter of support from the Bangladesh Awami Jubo League of Jamalpur Zila dated 20 May/2008; and

b.    A copy of letter of support from the Bangladesh Awami Jubo League of Jamalpur Upazila dated 20 May/2008

2.         The Tribunal made a wrong assumption about my credibility by making the following comment that:

       I consider that there are good reasons not to accept the applicant’s evidence regarding his own and his father’s involvement in the Awami League and the Jubo League and the persecution he claims to have suffered as a result.

3.         The Tribunal made a comment that there was not a real chance that I would be involved in political activity if I return to Bangladesh in the foreseeable future.

       I submit that the Tribunal made a wrong comment about my future persecution if I return to Bangladesh.

While such grounds are different to those in the Application before the Federal Magistrate, they are identical to those contained in the written submissions put before the Federal Magistrate which he took as being the only discernable grounds of appeal.

SUBMISSIONS OF THE APPELLANT

15                  The appellant provided written submissions in support of his appeal. These were identical to those placed before the Federal Magistrate save for an extra paragraph in the submissions before this Court stating that the Federal Magistrate had dismissed the appeal. They were also identical in style and similar in content to the written submissions in another migration matter before this Court, namely SZMXI v Minister for Immigration and Citizenship NSD 283/2009. It would appear that they have been prepared by the same author. The appellant was invited to make oral submissions but declined to do so.

16                  The appellant submitted that there were three grounds of appeal. Firstly, the appellant claimed that the Tribunal did not accord natural justice to him by failing to give any weight to the two letters. The appellant submits that the Tribunal considered the two letters to be not genuine without making an enquiry through the Australian High Commission in Dhaka concerning their authenticity.

17                  Secondly, the appellant claims the Tribunal erred in finding that he was not credible. The appellant relies, as he did before the Federal Magistrate, upon the decision of the Full Federal Court of Australia in W148/00A v Minister for Immigration and Multicultural Affairs (2002) 185 ALR 703 in which the Court found that ‘… on the cumulative weight of the matters referred to by the tribunal, it was open to the tribunal to reach its conclusion as to credibility’: see [69]. The appellant claims that the dissenting judgment of Lee J should apply wherein his Honour found to the contrary.

18                  Thirdly, the appellant claims the Tribunal misunderstood ‘the reality of my future persecution in Bangladesh’ in finding that there was not a real chance that the appellant would be involved in political activity if he returned to Bangladesh in the foreseeable future.

FINDINGS

19                  The Court observes that the Notice of Appeal challenges the findings of the Tribunal and does not claim that the Federal Magistrate committed any error of law. The issues raised by the Notice of Appeal and arguments put in support of them are identical to those raised before Smith FM. The appellant appeals the Tribunal decision directly, as if the Federal Magistrate’s decision never occurred. The purpose of the proceedings before this Court is to determine whether any error exists in the judgment of the Federal Magistrates Court, not the Tribunal: see Sathiyanathan v Minister for Immigration and Multicultural Affairs [2000] FCA 210 at [10]. Accordingly, in the absence of any arguments pertaining to errors made in the Federal Magistrate’s judgment, the appeal must fail unless error is apparent on the face of the Federal Magistrate’s decision. The Court can find no such error. His Honour addressed all the arguments put by the appellant and answered them comprehensively. Nothing would be gained from the Court answering the appellant’s submissions as it would be merely restating what Smith FM has already found.

20                  The appeal is dismissed.

Associate:

Dated:         1 June 2009