SZBAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 159 (11 February 2005)

Last Updated: 7 March 2005

FEDERAL COURT OF AUSTRALIA

SZBAQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 159

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























SZBAQ V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1413 OF 2004



HELY J
11 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1413 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBAQ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	11 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.













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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1413 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBAQ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	11 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a decision of Federal Magistrate Baumann given on 9 September 2004 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’), which affirmed a decision of a delegate of the Minister not to grant a protection visa to the appellant. By direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the appellate jurisdiction of the Court in relation to the hearing and determination of this appeal is to be exercised by a single Judge.

2 The notice of appeal contains three grounds. The first ground of appeal reads:

‘The applicant was a leading activist of the Jatiya Party, which was subject to oppression of the mainstream community, was not considered by the Tribunal. The Honourable Court erred to consider this issue.’

3 The RRT accepted that the appellant had some limited association with the Jatiya Party (‘the Party’), but rejected the appellant’s claim that he was a leading activist in the Party. The RRT was not satisfied that because of his limited association with the Party, he would experience serious harm amounting to persecution for any convention reason if he were to return to Bangladesh.

4 The Federal Magistrate held that these were factual findings which the RRT was entitled to make, as they involved an assessment of what the RRT described as the vague and uncertain evidence of the appellant, and because, in part, they were dependent upon or they were based upon, the RRT’s assessment of the appellant’s credibility. The conclusion to which the RRT came was that the appellant’s evidence was generally not reliable.

5 No error has been shown in the Federal Magistrate’s decision in this respect. In his oral submissions this morning the appellant said to me on a number of occasions that the RRT just did not believe, or would not believe anything he said. That may well be so, but it is the RRT’s job to make assessments of the credibility of people who appear before it and neither the Federal Magistrate nor I is entitled to interfere with the RRT’s assessment in that respect provided, of course, that it was an assessment that was open to the RRT to make. I agree with the Federal Magistrate’s finding that the RRT was entitled to come to the factual conclusions which it did. For this reason, the first ground of appeal fails.

6 The second ground of appeal is as follows:

‘The Tribunal did not provide any opportunities to the applicant to comment on materials which the Tribunal relied on its decision. The Honourable Court failed to take this issue into account.’

7 This ground of appeal is entirely unspecific. I note the transcript of the proceedings before the RRT was not placed before the Federal Magistrate, nor has it been placed before me. The only material which was before the Federal Magistrate as to the conduct of the hearing before the RRT, was the RRT’s reasons for decision which contained some references to what happened at the hearing. For example, on page 9 of the RRT’s decision, this appears:

‘The Tribunal put to the Applicant there was independent country information that the current government was not pursuing a campaign of persecution of its political opponents and the courts were independent and invited him to respond. In reply, he claimed that in Bangladesh there was not 100% safety for anyone in politics opposed to the government, from former ministers to supporters.’

8 The Federal Magistrate found, correctly in my view, that the RRT did disclose the significance of the relevant country information to which the appellant was invited to respond. It seemed to the Federal Magistrate, as it seems to me, that the substance of this information was conveyed to the appellant and he was invited to comment on it. In the absence of the identification of any other information which it is said was not disclosed to the appellant, and in the absence of a transcript of the proceedings before the RRT, the second ground fails.

9 The third ground of appeal is as follows:

‘An amendment submission will be followed when the applicant will receive the decision from the Court.’

10 When the appellant came to Court this morning he handed me a document styled Submission for the Applicant, which I will have placed with the papers so that it forms part of the Court record. I will not attempt to summarise the document. It is sufficient, for present purposes, to say that neither the written submission nor anything which the appellant has said to me this morning, discloses any jurisdictional error on the part of the RRT.

11 Understandably, the appellant is disappointed with the RRT’s decision and I accept that he is distressed at the prospect of his being returned to Bangladesh. The Federal Magistrate and I are bound by the law and we cannot interfere with the decision of the RRT absent demonstration of jurisdictional error. As no such error has been demonstrated, it follows that the appeal must be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated: 2 March 2005

	The appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 February 2005
Date of Judgment:	11 February 2005