SZKTU v Minister for Immigration and Citizenship [2008] FCA 132 (21 February 2008)

Last Updated: 22 February 2008

FEDERAL COURT OF AUSTRALIA

SZKTU v Minister for Immigration and Citizenship [2008] FCA 132

SZKTU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1960 OF 2007

COWDROY J
21 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1960 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKTU Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE OF ORDER:	21 FEBRUARY 2008
WHERE MADE:	SYDNEY

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.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1960 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZKTU Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	COWDROY J
DATE:	21 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant appeals from a decision of Federal Magistrate Scarlett delivered on 13 September 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 24 May 2007. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship (‘the Minister’) made on 1 February 2007 that refused to grant a protection visa to the appellant.

BACKGROUND

2 The appellant is a citizen of Bangladesh and arrived in Australia on 22 September 2006 holding a business visa. By application dated 2 November 2006 the appellant applied to the Department of Immigration and Multicultural Affairs for a Protection (Class XA) visa. Such application was refused on 1 February 2007. On 16 February 2007 the appellant applied for review of the decision of the Minister’s delegate. The Tribunal invited the appellant to a hearing on 16 April 2007 which he duly attended.

3 The appellant claimed that he was a religious Muslim scholar and was a leader of Jammat-e-Islami (‘JI’). He claimed to have been a member of JI since 2001. He claimed that after JI came to power in a coalition with the Bangladesh National Party (‘BNP’) he received threats from members of the opposition Awami League. He claimed to have suffered persecution resulting from his religion and political opinions.

4 The appellant claimed that after he left Bangladesh for Australia, Awami League members went to his house in search of him. In his absence they allegedly harassed and tortured his family members. The appellant said that on the following day the Awami League members returned and told his family that they would kill the appellant if he returned to Bangladesh. The appellant stated that he fears harassment, humiliation and false criminal charges if he were to return.

THE DECISION OF THE TRIBUNAL

5 The Tribunal accepted that the appellant was ‘an ordinary member of JI’. The Tribunal also accepted that members of the Awami League went to the appellant’s house and slapped his brother, but found that such event was a ‘one-off’ event, resulting from ‘general communal disturbance in unusual political circumstances’. The Tribunal noted that the appellant’s wife and family reside in the same house and are undisturbed. The Tribunal found that there was no ongoing threat to the appellant by reason of his political opinion.

6 The Tribunal accepted that Awami League members may have called the appellant to ask for money, but it did not consider that such conduct amounted to persecution.

7 The Tribunal found that the appellant had not suffered harm in the past by reason of his political opinion (or any other reason) and the chance that he would be harmed in the reasonably foreseeable future was remote.

8 The Tribunal noted independent country information that showed substantial political change and a reduction in corruption since the appellant’s departure. The Tribunal was therefore not satisfied that the appellant had a well-founded fear of persecution for a reason under the Convention Relating to the Status of Refugees 1951.

THE DECISION OF THE FEDERAL MAGISTRATES COURT

9 On 27 August 2007 the appellant applied for judicial review of the Tribunal’s decision in the Federal Magistrates Court of Australia. The appeal was heard before Federal Magistrate Scarlett on 13 September 2007 and his Honour delivered judgment on that day.

10 As a first ground the appellant claimed that the Tribunal failed to recognise his persecution. Scarlett FM found that there was no evidence that the Tribunal misunderstood the meaning of persecution and concluded that such ground invited the Court to engage in a merits review or to reconsider the appellant’s factual claims, both of which are not available on judicial review. Accordingly his Honour found that such ground should be dismissed.

11 As a second ground the appellant claimed that the Tribunal had acted in excess of its jurisdiction. Scarlett FM found that there was evidence to support the Tribunal’s finding that the past harm suffered by the appellant was not sufficient to constitute persecution. The Tribunal was also entitled to hold, based upon independent country information, that the chance of future harm for political reasons was remote. Scarlett FM was not satisfied that there was evidence that the Tribunal acted in excess of its jurisdiction.

12 As a third ground the appellant claimed that the Tribunal did not seek comment from him concerning independent evidence, namely an article entitled ‘Bangladesh at a Crossroad’. Scarlett FM found that the evidence which was relied upon was information which fell within subs 424A(3)(a) of the Migration Act 1958 (‘the Act’). It followed that it was not the kind of information which was required to be provided to the appellant by the Tribunal. Accordingly no error existed in the Tribunal’s decision.

13 His Honour also considered the decision of the Tribunal to determine whether there was any other ground of error in view of the fact that the appellant was unrepresented. He could find no such error and accordingly dismissed the application.

APPEAL TO THIS COURT

14 By Notice of Appeal filed on 28 September 2007 the appellant appealed to this Court from the decision of Scarlett FM. The Notice of Appeal asserts five grounds which challenge the factual findings of the Tribunal. However at the hearing the appellant acknowledged that grounds four and five had been included in error. Accordingly, the appellant relied upon three grounds, namely, that the Tribunal failed to recognise his persecution in Bangladesh, that the Tribunal acted in excess of jurisdiction, and that the Tribunal breached s 424A of the Act.

FINDINGS

15 The appellant attended before the Court and provided written submissions.

16 The appellant claimed that the Tribunal ‘failed to realise my persecution’ because of his adherence to JI. The appellant claimed that the Tribunal did not consider the reality of the likelihood of persecution if he returned to Bangladesh and that such failure resulted in a failure to consider ‘an essential substantial matter to my claims’.

17 The claims of the appellant implicitly seek a merits review which this Court is unable to grant: see Minister v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ). Such issue was determined by the Tribunal which considered its finding after reviewing the evidence before it. As Scarlett FM observed, there was evidence before the Tribunal that there was only a remote chance that supporters of the Awami League would harm him because of his adherence to JI. His Honour concluded that there was no ground for the Court to interfere with the factual finding on judicial review of the Tribunal’s decision. This Court is unable to find any error in his Honour’s conclusion. The appellant’s first ground of appeal must be rejected.

18 The appellant claimed in his second ground of appeal that the Tribunal acted in excess of its jurisdiction. This ground of appeal has already been determined by Scarlett FM who found that there was no jurisdictional error and that the appellant was seeking an impermissible merits review. There is no demonstrable error in the determination of the Federal Magistrate.

19 As to the third ground of appeal, subs 424A(3)(a) of the Act does not require the appellant to comment upon independent country information. Accordingly, the Tribunal was not required to inform the appellant in writing of its intention to rely upon the BBC news program which constituted independent country information. Scarlett FM correctly concluded that for this reason there was no breach of the Act by the Tribunal as claimed by the appellant. There is no error in the Federal Magistrate’s decision on this issue.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate:

Dated: 21 February 2008

Counsel for the Appellant:	The appellant appeared in person
Counsel for the Respondent:	Mr O'Donnell
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	19 February 2008
Date of Judgment:	21 February 2008