SZGPS v Minister for Immigration & Citizenship [2007] FCA 639

FEDERAL COURT OF AUSTRALIA

SZGPS v Minister for Immigration & Citizenship [2007] FCA 639 SZGPS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR NSD 70 OF 2007

RARES J

30 APRIL 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 70 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGPS

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RARES J DATE OF ORDER: 30 APRIL 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent is changed to 'Minister for Immigration and Citizenship'. 2. The appeal is dismissed. 3. The appellant pay the first respondent's costs fixed in the sum of $2,500. 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 70 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZGPS

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RARES J

DATE: 30 APRIL 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 This is an appeal from a decision of the Federal Magistrates Court (SZGPS v Minister for Immigration [2006] FMCA 1950). The trial judge rejected the present appellant's claim that the decision of the Refugee Review Tribunal made on 25 May 2005 and handed down on 14 June 2005 affirming a decision of a delegate of the Minister not to grant a protection visa was affected by jurisdictional error. 2 The essence of the appellant's claim was that he was a homosexual. A national of Bangladesh, he claimed that after his sexuality was discovered by his grandfather he and his partner had had to leave Bangladesh with the assistance and encouragement of his grandfather to live in Saipan, so as to avoid persecution based on the disapprobation by Bangladeshi society and his family of homosexuality. The appellant however was not believed by the tribunal. It did not accept that he was or is a homosexual and as a result it found that he did not have a well-founded fear of persecution in Bangladesh for a Convention reason. His Honour found no jurisdictional error in the tribunal's decision. 3 The notice of appeal in this Court does not claim that his Honour made any error apart from failing to grant his application for constitutional writ relief. The notice of appeal asserts that the appellant had been denied procedural fairness by the tribunal because it was biased and had applied some technical basis for testing his credibility in order to achieve a result which it had already arrived at in its mind. This was because the appellant asserted that the tribunal had failed to take into account the full gravity of his circumstances and the consequences of any decision it would make. The notice of appeal asserts, without elaboration, that the decision of the tribunal was an improper exercise of the power conferred by the Act. It also asserts that there was a jurisdictional error which included the interpretation of the law applying to the facts because the tribunal allegedly failed to comply with s 424A of the Migration Act 1958 (Cth). The basis of that failure was said to be a reference to independent evidence by the tribunal in the section of its reasons dealing with the claims and evidence. This included three identified items of country information which do not appear to be referred to in the section of the tribunal's reasons headed 'Findings and Reasons'. The appellant also alleged that the tribunal denied him natural justice, made a decision which was unjust and had no substantive or other material or evidence to justify its decision. 4 I will deal with the substantial grounds raised by the appellant in turn.