SZKDS v Minister for Immigration and Citizenship (includes Corrigendum dated 21 June 2010) [2010] FCA 79 (16 February 2010)

Last Updated: 21 June 2010

FEDERAL COURT OF AUSTRALIA

SZKDS v Minister for Immigration and Citizenship [2010] FCA 79

Citation:		SZKDS v Minister for Immigration and Citizenship [2010] FCA 79
Appeal from:		SZKDS v Minister for Immigration & Anor [2009] FMCA 1550
Parties:		SZKDS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 1322 of 2009
Judge:		TRACEY J
Date of judgment:		16 February 2010
Corrigendum:		21 June 2010
Legislation:		Migration Act 1958 (Cth), s 91R(1)(b), 424A(1)
Cases cited:		SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (referred to) SZKDS v Minister for Immigration [2009] FMCA 1050 (affirmed) VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471(referred to)
Date of hearing:	16 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	18
	The Appellant appeared in person
Counsel for the Respondents:	Mr Y Shariff
Solicitor for the Respondents:	DLA Phillips Fox

FEDERAL COURT OF AUSTRALIA

SZKDS v Minister for Immigration and Citizenship [2010] FCA 79

CORRIGENDUM

1. The ‘Appeal from’ section on the front cover sheet should read:
   

SZKDS v Minister for Immigration and Citizenship [2010] FMCA 1050

I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Tracey.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1322 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	TRACEY J
DATE OF ORDER:	16 FEBRUARY 2010
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.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1322 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	TRACEY J
DATE:	16 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against the judgment of a Federal Magistrate delivered on 30 October 2009, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 11 January 2008: see SZKDS v Minister for Immigration [2009] FMCA 1050. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Citizenship (“the first respondent”) to refuse to grant a protection visa to the appellant.

BACKGROUND

2. The appellant is a citizen of Bangladesh. He entered Australia on 28 March 2006 on a subclass 456 business visa. On 24 April 2006 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs as it was then known. On 14 July 2006 a delegate of the first respondent refused the application. On 8 August 2006 the appellant applied to the Tribunal for a review of that decision. On 21 December 2006 the Tribunal affirmed the decision of the delegate. On 6 February 2007 the appellant applied to the Federal Magistrates Court for a review of the Tribunal’s decision. On 24 July 2007 Scarlett FM quashed the decision of the Tribunal and remitted the matter to the Tribunal for re-hearing. On 11 January 2008 the Tribunal, differently constituted, again affirmed the decision not to grant the appellant a protection visa. On 26 February 2008 the appellant applied once more to the Federal Magistrates Court for review of the Tribunal’s decision. On 30 October 2009 Nicholls FM dismissed the application. On 20 November 2009 the appellant brought an appeal to this court against the Federal Magistrate’s decision.
3. The appellant claimed that he fears persecution in Bangladesh as a result of his interfaith marriage. The appellant is from a Muslim family. His wife is Hindu. He claims that members of his family and local community put pressure on him not to go through with the marriage. He claimed that he was beaten and received death threats from Islamic fundamentalists shortly before the marriage took place.
4. The appellant’s wife continues to reside in Bangladesh. The appellant claims that, were he to return to Bangladesh, he would be harmed and mistreated by his family, those in the local community and the government. The appellant relied, in part, on evidence given by the priest who performed his marriage, as well as letters from his wife which outlined the fears she allegedly holds for his and her safety in Bangladesh.

THE REFUGEE REVIEW TRIBUNAL

5. The Tribunal found that the appellant was not a credible witness. The Tribunal considered that he had made statements which he knew to be untrue in support of his application for a protection visa. The Tribunal did accept that the appellant comes from a Muslim family and that he is married to a Hindu woman. The Tribunal was not, however, satisfied that there existed a real chance that the appellant would be harmed or mistreated by the Government of Bangladesh because of his interfaith marriage.
6. The Tribunal accepted that both the appellant and his wife received ‘verbal threats’ and that ‘huge pressure’ was put on the appellant not to marry a Hindu woman. The Tribunal also found that the appellant’s family did not accept his marriage. The Tribunal formed the view that the appellant had ‘greatly exaggerated the threat he faces from his family, his relatives, the Muslim community or Muslim extremists or from his wife’s family or the Hindu community’.
7. Further, the Tribunal considered that it would be reasonable and practicable for the appellant to relocate with his wife to one of the large cities or towns in Bangladesh, where interfaith marriages are more common and their safety would not be at risk. It was not satisfied that the appellant faced a real chance of persecution were he to return to Bangladesh.

FEDERAL MAGISTRATES COURT

8. On 21 July 2008 the appellant filed an application for judicial review of the Tribunal’s (second) decision in the Federal Magistrates Court. The application outlined four grounds of appeal:

“1. The Refugee Review Tribunal failed to exercise its jurisdiction under the Act:

Particulars:

1. The Tribunal did not put any weight to the document which I submitted before the Tribunal that:

(i) A copy of letter from Nripendra Bhattacharjee who performed our marriage dated 7/10/2006;
(ii) The itemised telephone bill;
(iii) A photocopy of a letter from my wife dated 21/05/2006 associated with translated copy of English; and
(iv) A photocopy of a letter from my wife dated 25/07/2006 associated with translated copy of English.

2. The Refugee Review Tribunal made a wrong comment about the mixed marriage in Bangladesh that:
   

Particulars:

1. The Tribunal made a wrong comment about the mixed marriage in Bangladesh that:

(i) The Tribunal failed to consider my persecution of the perspective of my marriage with a Hindu woman.

3. The Refugee Review Tribunal failed to make a distinction between our family name of “Mullah” and the Islamic “Mullah”:
   

Particulars:
A. The Tribunal failed to make a distinction between our family name of “Mollah” and the Islamic “Mullah” that:
(i) The Tribunal failed to establish a distinction between our family name of “Mollah” and the Islamic “Mullah”.

4. The Refugee Review Tribunal acted in bad faith:

Particulars:
A. The Tribunal acted in bad faith that:
(i) The present Tribunal asserted the decision from the previous Tribunal and failed to put its own effort to consider my persecution”.

9. At the hearing before the Federal Magistrates Court the appellant advanced two further arguments in support of his application. The first was that he had wanted the Tribunal to enquire as to his truthfulness but the Tribunal had not done so and merely found that he was lying. The second was that, while he had told the Tribunal that he could not relocate safely in Bangladesh, it had not believed him and merely found that he was lying in accordance with the Tribunal’s earlier finding. The Federal Magistrate gave careful and detailed reasons for rejecting all of these grounds.

Ground 1

10. The Federal Magistrate considered that it was a matter for the Tribunal to decide which items of evidence it would give weight to, and further, that the Tribunal is not obliged to refer to every piece of evidence that was put before it when recording its decision. He pointed out that the Tribunal’s obligation is “to refer to that evidence on which its findings of fact were based”. He found that the Tribunal either did give weight to the matters mentioned by the appellant, or was not required to refer to those specific pieces of evidence in its reasons.

Ground 2

11. The Federal Magistrate found that the Tribunal had indeed accepted that the appellant was of Muslim faith and had married a Hindu woman. What it had not accepted was that the appellant’s interfaith marriage could cause problems amounting to persecution within the meaning of s 91R(1)(b) of the Migration Act 1958 (Cth) (“the Act”). He considered that there was no legal error in the Tribunal’s approach in this regard, and that the appellant was inviting the Court to engage in impermissible merits review.

Ground 3

12. This ground was also rejected. The Federal Magistrate considered that the Tribunal had found the appellant’s evidence on the question of his family name inconsistent, and had found that this evidence went to the appellant’s overall credibility. He considered that the appellant was seeking to have his own ‘explanation for the inconsistency of his evidence [accepted] in lieu of the Tribunal’s finding in this regard’.

Ground 4

13. The Federal Magistrate found that there was no evidence to support the appellant’s claims of bad faith or bias. He considered that the appellant’s real complaint appeared to be that the Tribunal should have made its own enquiries as to the state of affairs in Bangladesh. He noted that the Tribunal was under no legal obligation to do so, and that the appellant had had the opportunity to put any evidence before the Tribunal he wished to.

Other matters

14. The Federal Magistrate also rejected the appellant’s complaint with regard to the Tribunal’s finding that he could reasonably be expected to relocate to another part of Bangladesh. He considered this to be an attempt to obtain impermissible merits review, and further noted that ‘the finding on relocation stands separate and apart from the finding [that] the applicant’s claims to fear harm did not amount to persecution involving “serious harm”’, and thus, any finding on relocation could not, in any case, constitute a jurisdictional error.

APPEAL TO THIS COURT

15. The appellant lodged his appeal from the Federal Magistrate’s decision with this Court on 20 November 2009. The appellant lists four grounds of appeal in his application. These are substantially identical to those raised before the Federal Magistrate, save that, after each of the first three grounds of appeal, the appellant has added the words: “... the FMC failed to identify this issue”.
16. The appellant appeared in person. He had the assistance of an interpreter. He relied on written submissions which he had filed prior to the hearing.
17. The appellant’s written submissions sought to reargue the merits of his case. They also sought to suggest that he had been denied natural justice because the Tribunal had not exposed to him, in advance of making its decision, the reasons which led it to make adverse findings on his credibility. In oral submissions he contended that, in addition to denying him natural justice in forming its views on his credibility, the Tribunal had also contravened s 424A of the Act.
18. I have read the Federal Magistrate’s reasons and they disclose no appellable error. On the contrary, the Federal Magistrate was, in my view, correct to refuse the appellant’s application. Insofar as this appeal was founded on the same arguments which were rejected by the Federal Magistrate, I reject the appellant’s grounds of appeal for the same reasons. Insofar as the appeal rests on the contention that the Tribunal contravened s 424A by failing to give the appellant the opportunity of responding to the views which it had formed about his credibility before it made its decision, the appeal fails because the Tribunal’s assessment of the appellant’s credibility did not constitute “information” within the meaning of s 424A(1): see SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 at 616; VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123; (2004) 206 ALR 471 at 477.

DISPOSITION

19. The appeal will be dismissed with costs.
    

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

Associate:

Dated: 16 February 2010