SZDHF v Minister for Immigration and Citizenship [2007] FCA 803

FEDERAL COURT OF AUSTRALIA

SZDHF v Minister for Immigration and Citizenship [2007] FCA 803 SZDHF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 207 OF 2007

MANSFIELD J

30 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 207 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDHF

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MANSFIELD J DATE OF ORDER: 30 MAY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The title of the first respondent be changed to Minister for Immigration and Citizenship. 2. The appeal is dismissed. 3. The appellant pay to the first respondent costs of the appeal. 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 207 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDHF

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: MANSFIELD J

DATE: 30 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 The appellant is a national of Bangladesh. He arrived in Australia on 30 October 2002 as a merchant seaman. On 8 November 2002 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act). He claimed to have a well-founded fear of persecution if he were to return to Bangladesh for reasons of his political beliefs, as an active and prominent member of the Awami League. His application was refused by a delegate of the first respondent on 17 December 2002. 2 There is a slightly complex procedural history since then. 3 The appellant unsuccessfully sought review of that decision by the Refugee Review Tribunal, which affirmed the delegate's decision on 3 March 2004. However, on 8 May 2006, the Tribunal's decision was set aside by consent for jurisdictional error and the matter was remitted to the Tribunal for reconsideration. It was agreed on behalf of the first respondent that the Tribunal in the course of its decision failed to comply with the requirements of s 424A of the Act. 4 On 7 August 2006, the Tribunal again affirmed the decision of the delegate of the first respondent (the second Tribunal decision). The appellant again applied to the Federal Magistrates Court to quash the second Tribunal decision. On 29 January 2007, a Federal Magistrate dismissed that application. The appellant was represented before the Federal Magistrates Court on that occasion. His notice of appeal was amended by abandoning claims that the Tribunal demonstrated ostensible bias in making the second Tribunal decision, that is that there was a reasonable apprehension of bias in the way it had addressed the appellant's claims. The notice of appeal was also amended by withdrawing a claim that the Tribunal had taken into account an irrelevant consideration, namely how it would have been affected if it had been attacked as the appellant claimed he had been attacked in November 2001 and April 2002. The ground of jurisdictional error which was argued was that the Tribunal made findings of fact in the absence of evidence probative of those facts. The particular findings which were attacked were findings that certain written evidence apparently corroborative of the appellant's claims and provided by people in Bangladesh and in Australia was written: … out of a general wish to assist someone who is known to the writers as a member or supporter of the Awami League, rather than as a genuine reflection of his political role. It was claimed that there was no evidential foundation at all for those conclusions. 5 The Federal Magistrate rejected those contentions. His Honour was satisfied that it was open to the Tribunal in the second Tribunal decision not to be satisfied that the corroborative material tendered in support of the appellant's claims contained reliable opinions and information concerning the appellant's political profile in Bangladesh. Hence, the Federal Magistrate found, the Tribunal's reasoning in relation to the documents it was required to consider and the weight it decided to give to that evidence did not involve any finding of fact which was simply not open to it. He declined to set aside the second Tribunal decision as he did not consider it was brought about by jurisdictional error. 6 There was no attack upon any of the findings of the Tribunal under s 424A before the Federal Magistrate.