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Federal Court of Australia |
Last Updated: 22 February 2008
FEDERAL COURT OF AUSTRALIA
SZDIX v Minister for Immigration and Citizenship [2008] FCA 127
SZDIX
v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW
TRIBUNAL
NSD 1811 OF 2007
COWDROY J
20
FEBRUARY 2008
SYDNEY
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AND:
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THE COURT ORDERS THAT:
1. The appeal be dismissed.2. The Appellant pay the costs of the First Respondent as agreed or taxed.
Note: Settlement and entry
of orders is dealt with in Order 36 of the Federal Court Rules.
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ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SZDIX
Appellant |
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AND:
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MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent |
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JUDGE:
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COWDROY J
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DATE:
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20 FEBRUARY 2008
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PLACE:
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SYDNEY
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REASONS FOR JUDGMENT
1 The appellant appeals from the decision of Federal Magistrate Nicholls delivered on 17 August 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 4 January 2007. The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) of 4 November 2003 to refuse to grant a protection visa to the appellant. A previous decision of the Tribunal dated 29 February 2004 was remitted to the Tribunal by consent orders made in the Federal Magistrates Court of Australia on 10 April 2006. The appeal before this Court concerns the second Tribunal decision.
BACKGROUND
2 The appellant, a citizen of Bangladesh, claimed he had suffered persecution based on his political opinion and that he would be persecuted if returned to his home country. He claimed that after he made significant contributions to the Awami League in the 2001 election, supporters of the Bangladesh National Party coalition (‘BNP’), a political party in opposition to the Awami League, ransacked the appellant’s house and attacked him and his family. In 2002 the appellant led a procession that was attacked by BNP supporters resulting in injuries to some Awami League activists. He claimed he was arrested and had a number of false claims filed against him.
3 Upon remittal of the review, the Tribunal wrote to the appellant on 21 September 2006 inviting the appellant to a hearing to be held on 25 October 2006. The appellant attended the hearing unrepresented and was assisted by a Bengali interpreter. The appellant submitted three documents to the Tribunal. The first document purports to be a letter from his lawyer in Bangladesh warning him that he would not be safe if he returned to Bangladesh, and that a warrant had been issued for his arrest. The second document purports to be a record of court proceedings in Bangladesh against the appellant. The third document is a letter from Mr Alam, the Vice President of the Bangladesh Awami League in Australia, advising that the appellant was a leading activist in the Awami League.
TRIBUNAL’S DECISION
4 The Tribunal’s decision shows that it carefully considered the documents relied upon by the appellant. The Tribunal concluded that the first two letters were not genuine. The Tribunal’s record shows that the Tribunal put to the appellant the issue that the documents were attested by the same person and on the same date and that such documents could be forged or fraudulently obtained. In view of the independent country information that such legal documents could be fraudulently obtained with ease in Bangladesh, the Tribunal concluded that no weight should be given to them.
5 The Tribunal accepted that the third document was genuine, in that it established that the appellant had become a member of the Australian branch of the Awami League. The Tribunal accepted the appellant had joined the Awami League in Australia but was satisfied that he engaged in the conduct to bolster his claims and consequently disregarded such conduct under s 91R(3) of the Migration Act 1958 (Cth) (‘the Act’).
6 The Tribunal was not satisfied the appellant was a credible witness. It found he did not have any involvement with the Awami League in Bangladesh and that he had not suffered any persecution as a result of his purported involvement. The Tribunal found the appellant gave inconsistent and vague evidence and that he lacked knowledge of the 2001 election and the Awami League in general. The Tribunal was not satisfied the appellant had a well-founded fear of persecution for a Convention reason.
HEARING BEFORE THE FEDERAL MAGISTRATE
7 By application filed on 24 January 2007, the appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. By an amended application filed on 3 May 2007 the appellant claimed that:
1. The Tribunal failed to give weight to the three supporting documents provided on 10 October 2006;2. That there was no evidence to support its findings; and
3. That the Tribunal had wrongly assumed the corroborating documents were fabrications, and had failed to inquire further into his claims.
8 Nicholls FM considered the grounds raised by the appellant. In his first ground the appellant claimed that the Tribunal gave no weight to the three documents he had supplied to the Tribunal. In relation to the two documents that the Tribunal found to be fabricated, his Honour observed that the Tribunal considered them and discussed them with the appellant. As to the third document, namely the letter from Mr Alam, his Honour found that the Tribunal did give weight to the document by finding that it was genuine to the extent that the appellant had become a member of the Australian branch of the Awami League. However the Tribunal found that Mr Alam’s statements concerning the appellant’s renown as a political leader in Bangladesh did not outweigh the concerns that the Tribunal had regarding the appellant’s own evidence.
9 His Honour explained to the appellant during the course of the hearing that it was the function of the Tribunal to assess all of the evidence put before it and that it was open to the Tribunal to find that no weight should be given to the first two documents on the grounds that they were fabrications. In respect of the third document, his Honour explained that it was open to the Tribunal to place on it whatever weight it determined.
10 The Federal Magistrate found that the provisions of s 424A(1) of the Act which requires the Tribunal to give notice to an appellant of any matter which may form the reason for its decision did not apply to the documents provided by the appellant by virtue of s 424A(3).
11 The second ground of appeal alleged that there was no evidence to support the Tribunal’s findings. Such ground was dismissed as there was no information put to the Tribunal to support that allegation. His Honour observed that the Tribunal was entitled to reach its own conclusion whether or not the appellant was a ‘refugee’. It found that the appellant had become a member of the Awami League in Australia but declined to attach any significance to it because of s 91R(3) of the Act. His Honour found no error by the Tribunal in reaching such conclusion.
12 The appellant’s third ground alleged that the Tribunal should have made further inquiries before finding that the documents he produced from Bangladesh were fabricated. His Honour found that there was no obligation on the Tribunal to make further inquiries and referred to the decisions in SZILK v Minister for Immigration and Citizenship [2007] FCA 185 at [18] and Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. His Honour found that there was no circumstance which existed to warrant the Tribunal making further inquiries. His Honour also referred to Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 in which the High Court observed that it was not a condition of the exercise of the Tribunal’s powers that the Tribunal in fact use those powers.
13 In so far as an allegation of bad faith was made against the Tribunal, his Honour referred to Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 and Re Refugee Review Tribunal: Ex Parte H [2001] HCA 28; (2001) 179 ALR 425 in relation to the requisite standards to be satisfied in order to prove such allegations. His Honour found that there was no evidence before the Court to support the appellant’s allegations of bad faith.
14 The learned Federal Magistrate could find no error in the Tribunal’s decision and accordingly dismissed the application.
APPEAL TO THIS COURT
15 By Notice of Appeal filed on 5 September 2007 the appellant appealed to this Court from the decision of Nicholls FM. The grounds in the Notice of Appeal essentially repeat the grounds raised before the Federal Magistrate with the additional ground that the Tribunal failed to properly assess the appellant’s credibility.
16 At the hearing of the appeal before me the appellant who was unrepresented relied upon written submissions and, with the assistance of an interpreter, made short oral submissions.
FINDINGS
First ground of appeal
17 The first ground of appeal asserts that the Tribunal gave no weight to documents which he submitted to it.
18 Whilst the appellant claimed in the Tribunal that his case was exceptional and that the documents were not forged, and repeated such claims before this Court, the Tribunal’s finding relating to the first two documents was one of fact with which this Court cannot interfere: see NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [10]. As to the third document, namely the letter from Mr Alam, it was open to the Tribunal to accept that such document was genuine but to place no weight upon it pursuant to s 91R(3) of the Act.
19 Federal Magistrate Nicholls reviewed the findings of the Tribunal and found that it was entitled to reach its decision. Having considered the Tribunal’s decision and that of Nicholls FM, this Court finds that there was no error in the decision of the Federal Magistrate.
Second ground of appeal
20 The second ground of appeal claims that the Tribunal acted in excess of its jurisdiction. Such claim was not the subject of any submissions before this Court. The Court observes that the Tribunal’s decision shows that it considered the appellant’s evidence and found it to be inconsistent and vague. The Tribunal could not be satisfied that there was a real chance that he would be persecuted for his claimed political opinions. The Federal Magistrate considered this ground of appeal and concluded that there was no basis for the claim that the Tribunal acted in excess of its jurisdiction. Again there is no demonstrable error in his Honour’s finding.
Third ground of appeal
21 The appellant appeals the finding made by the Tribunal that he was not a credible witness. The Federal Magistrate observed that even if the Tribunal had not accepted any part of the appellant’s evidence, such finding did not reveal jurisdictional error. As referred to by the Federal Magistrate, findings relating to credibility are matters for the Tribunal: see Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at [67].
Fourth ground of appeal
22 Although not referred to as a separate ground in the Notice of Appeal, the written submissions of the appellant challenge the finding that he would not be persecuted should he return to Bangladesh. He claims that the Tribunal did not take into account the ‘present condition of Bangladesh’.
23 The Tribunal was not satisfied that the appellant had been a member of the Awami League in Bangladesh. Accordingly, it concluded that there was no real chance of the appellant becoming involved in political activity if he returned to Bangladesh, nor a real chance that he would be subject to persecution.
24 Such findings are factual findings with which this Court cannot reconsider.
25 In view of the forgoing the appeal shall be dismissed.
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I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. |
Associate:
Dated: 20
February 2008
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Counsel for the Respondent:
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Solicitor for the Respondent:
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Date of Hearing:
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Date of Judgment:
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/127.html