SZHJT & Ors v Minister for Immigration and Citizenship & Anor [2007] FCA 180 (12 February 2007)

SZHJT & Ors v Minister for Immigration and Citizenship & Anor [2007] FCA 180

SZHJT, SZHJU AND SZHJV v MINSTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
1746 OF 2006

DOWNES J
12 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1746 OF 2006

BETWEEN:	SZHJT First Appellant SZHJU Second Appellant SZHJV Third Appellant
AND:	MINSTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	DOWNES J
DATE OF ORDER:	12 FEBRUARY 2007
WHERE MADE:	SYDNEY

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	1746 OF 2006

BETWEEN:	SZHJT First Appellant SZHJU Second Appellant SZHJV Third Appellant
AND:	MINSTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	DOWNES J
DATE:	12 FEBRUARY 2007
PLACE:	SYDNEY

1 The appellants are Bangladeshi. They are a husband and wife and their daughter. The husband and wife are in their late forties and the daughter is 15.

2 On arrival in Australia they sought protection visas under the Refugees Convention on the ground that the husband had a well-founded fear of persecution on the basis of his political opinion, namely, that he was a member of the Jatiya Party and a supporter of its founder Ershad.

3 The applications were unsuccessful. The Refugee Review Tribunal also determined that the appellants were not entitled to protection visas. However, an appeal to the Federal Court of Australia was successful. The Refugee Review Tribunal, differently constituted, accordingly conducted another hearing and reconsidered the claim. Again, the appellants were unsuccessful. They applied for review to the Federal Magistrates Court where they were again unsuccessful and they now appeal to this court.

4 The Migration Act 1958 (Cth) commits the ultimate determination of the facts in refugee cases to the Refugee Review Tribunal. That Tribunal considers the matter afresh and on its merits. It is not a court. It substitutes its decision for that of the Minister, which is usually made through his delegate. The Parliament, representing the people, has created two tiers of decision-making during which an applicant for a protection visa has an opportunity to put forward a case on the facts.

5 The rights of persons claiming to be refugees in Australia do not, however, stop there. For practical purposes there is a review of the decision of the Refugee Review Tribunal in the Federal Magistrates Court with an appeal to this Court. The appeal is, however, confined to an error of law amounting to jurisdictional error.

6 Behind every application for a protection visa lies a factual basis. The factual basis which the appellants assert in this case is that the husband fears persecution because of his membership of the Jatiya party. A factual issue for determination in connection with that claim is the nature and extent of the husband’s membership of the party and its association with potential persecution. The Refugee Review Tribunal, constituted by Mr Luke Hardy, did "not accept that the [husband] had any significant role in the [Jatiya] party". The Tribunal found that his evidence was "vague, evasive, confused and contradictory". It declined to give weight to written testimonials and to the evidence of a witness called by the husband. The Refugee Review Tribunal accordingly found that the facts were not as the appellants claimed them to be. That is the reason they were unsuccessful. I have no jurisdiction or power to reconsider the facts.

7 The reality of this case is that the appellants have lost it on the facts. However, the only appeal relates to the law. Accordingly any appeal must address the law and not the facts. That raises problems for the many appellants who are in the same position as the appellants here. However, if there is a jurisdictional error an appeal will be successful. Accordingly, I now turn to that question.

8 The notice of appeal contains two grounds. The first is a bald assertion of jurisdictional error. The second asserts that the Federal Magistrate, in paragraph [31] of the reasons for judgment, "did not consider the Tribunal’s obligation to the applicant regarding the letter of the witness".

9 The appellants have filed written submissions. They appear to raise five grounds, as follows:

1. The Refugee Review Tribunal found that the appellants "failed to put a credible case" which amounts to jurisdictional error because section 91R of the Migration Act 1958 (Cth) does not require the appellants to undertake the obligation of putting a credible case.

2. The Tribunal wrongly declined to accept that the husband went to the United Kingdom.

3. The Tribunal’s letter of 19 July 2005, under section 424A of the Act, did not comply with the section because although the letter gave notice that "the Tribunal might have some reason to doubt the reliability of family members" it did not identify any reasons why this may be so.

4. The Tribunal did not make findings on all the matters raised in the 19 July 2005 letter.

5. The Tribunal did not follow the cases of SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 or SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24.

11 1. Section 91R does not address the way the Refugee Review Tribunal should go about assessing claims before it, but contains provisions relating to the way the Refugees Convention should be construed. It is true that, because the Tribunal is engaged in administrative decision-making by way of exercising the administrative power of the Commonwealth and is not exercising judicial power, it follows that there is no onus in proceedings before it. But I do not consider that the Tribunal did anything offending that proposition. The appellants did put a case. It was in their interests to do so. The Tribunal assessed this case as not being credible. That was simply an exercise of its function of assessing the material before it. In any event, it is apparent from a reading of the whole of the Tribunal’s decision that it was doing more than simply ruling upon the case the applicants put before it and was assessing all the available material. There was no failure to comply with the obligations imposed upon the Tribunal to consider the whole of the claim even taking into account the observations of the High Court in Applicant VEAL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72; (2005) 222 ALR 411 at 419; [2005] HCA 72 at paragraph [26].

12 2. This ground is misconceived. The finding of the Tribunal was: "The Tribunal does not accept that the [husband] went to the UK on either of the two occasions he did in order to avoid persecution in Bangladesh". This is a finding that he did go to the UK but not for the purpose claimed.

13 3. The obligation under section 424A of the Migration Act is quite specific. The statement in the letter of 19 July 2005 that the Tribunal "might have some reason to doubt the reliability of family members" may not be "information" within section 424A. Applicants must be taken to know that assessing the credibility of evidence is an essential function of the Refugee Review Tribunal. However, to the extent to which any relevant obligation did arise under section 424A it was satisfied by giving notice that particular material might be doubted.

14 4. The Tribunal did not have any obligation to make a finding on all the matters raised in the 19 July 2005 letter or in the appellants’ reply.

15 5. I cannot see any basis upon which the Tribunal failed to follow SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 or SAAP v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24.

16 During the hearing today the wife put submissions, orally, to me on behalf of all the appellants. Those submissions either raised grounds that I have already dealt with or were exclusively confined to arguments that the Tribunal made the wrong findings of fact. I repeat that I have no power merely to reconsider the findings of fact. She did add one fresh matter, which was also the subject of a medical certificate provided for me at the beginning of the hearing from Dr Anthony Dinnen. That certificate and the submissions of the wife are to the effect that the husband suffers a depressive condition. I have no reason to doubt the correctness of this statement. However, the only matter for me to determine on this appeal is the question of whether the decision of the Tribunal was affected by jurisdictional error. It is not said that in some way the Tribunal made a jurisdictional error associated with evidence concerning the husband’s mental condition. Accordingly, while I understand the significance of the illness that is referred to in the certificate of Dr Dinnen it cannot affect the result of this appeal.

17 The reality of this case is that the appellants are disappointed with the findings of fact made by the Refugee Review Tribunal. However, these findings were not attended by error of law. Accordingly, the appeal must be dismissed and will be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes.

The first and second appellants appeared in person with the assistance of an interpreter.

Counsel for the First Respondent:	B O’Donnell

Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	12 February 2007

Date of Judgment:	12 February 2007