SZMVN v Minister for Immigration and Citizenship [2009] FCA 478

FEDERAL COURT OF AUSTRALIA

SZMVN v Minister for Immigration and Citizenship [2009] FCA 478

SZMVN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 139 of 2009

BESANKO J

8 MAY 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 139 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMVN

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J

DATE OF ORDER: 8 MAY 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal dated 18 February 2009 be dismissed. 2. The applicant is to pay the first respondent's costs of the application. 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 eSearch on the Court's website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 139 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMVN

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J

DATE: 8 MAY 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from orders made by the Federal Magistrates Court. The application for leave to appeal is dated 18 February 2009 and is accompanied by an affidavit of the applicant. A draft notice of appeal is attached to the applicant's affidavit and the one ground of appeal in the draft notice of appeal reads: "Humanity" 2 The order appealed from is an order made on 29 January 2009 as follows: "Pursuant to r.44.12(1)(a) of the Federal Magistrates Court Rules 2001, the application be dismissed." 3 Rule 44.12(1)(a) provides as follows: "(1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed — dismiss the application;…" 4 Rule 44.12(2) provides that a dismissal under paragraph (1)(a) is interlocutory. Section 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal shall not be brought from a judgment referred to in subs (1), that is, an interlocutory judgment, unless the Court or a judge gives leave to appeal. The judgment in this case falls within section 24(1) of the Act. The test on an application for leave to appeal is well established. The considerations are as follows: 1. whether, in all the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and 2. whether substantial injustice would result if leave were refused, supposing the decision to be wrong. (See Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.) 5 The applicant is a 27 year old man who is a national of Bangladesh. He has two brothers and two sisters. He claims that his father was a brave freedom fighter in Bangladesh. He claims that he became interested in politics when he was about 17 years of age and that he was appointed as a General Secretary of No 27 ward of Agrabad area. In that position, he faced different types of threats from the BNP. Eventually, his father decided that he should be sent abroad. He came to Australia on 24 May 2002 and he applied for a Protection (Class XA) visa on 9 April 2008. In the interim, he had studied a course in accounting at the University of Western Sydney. He returned to Bangladesh at one stage when his sister became sick. He was threatened by BNP students and workers. He came back to Australia. 6 The applicant's university studies were not a success. He developed a serious gambling problem. 7 The applicant's application was refused by the first respondent's delegate and he made an application for review to the Tribunal on 24 June 2008. He appeared before the Tribunal to give evidence and present arguments. The Tribunal member was not impressed by his evidence and put to him that it appeared to be vague, general and lacking in important details. The applicant told the Tribunal member that he fears the reaction of his family if he returns to Bangladesh. This was related to his gambling and the money he had lost. 8 The Tribunal handed down its decision on 18 September 2008. The Tribunal affirmed the decision of the delegate not to grant the applicant a protection visa. The Tribunal member did not accept that the applicant was involved in political activities. She said: "On his own evidence, his protection claims are 'minor' and 'partly true', raising serious concerns about the veracity of his claims. Despite being given a number of opportunities to clarify, the applicant's responses to questions about his political activities were vague, general and lacking in important details. Given those concerns and in consideration of the evidence as a whole, the Tribunal does not accept that the applicant or any member of his family was involved in any political activities. Specifically and for those reasons, the Tribunal rejects that the applicant had any involvement in the Chhatra league (or any other actual or perceived political organisation), or that he was General Secretary or that in 2001, during elections, he was inside the election centre collecting votes or that he had faced any 'antagonistic situation' or that he was blamed for any 'false case' or that BNP students and workers threatened him, or that 'people' from the BNP threatened him or his father or that his friends had been harassed, or killed, or have gone missing. In essence and for those reasons, the Tribunal does not accept that the applicant or any member of his family has been involved in any actual or perceived political activities. The Tribunal is satisfied that the applicant has fabricated those claims in order to bolster his application for a protection visa." 9 The Tribunal member also referred to the applicant's delay in applying for a protection visa and said that it suggested the application was lodged as a last option to enable him to remain in Australia. The Tribunal member also said that, even if she gave the appellant the benefit of the doubt and accepted that he had a gambling problem and would be rejected by his family in Bangladesh, any harm that followed would not be Convention-related. 10 In his reasons for judgment, the federal magistrate set out the background facts and summarised the Tribunal's decisions and reasons. He identified the two grounds in the application for judicial review. He expressed his conclusions in the following way: "In considering these matters, it has to be noted that the Court's role is not to re-hear the application which was made to the Tribunal, but to determine whether the Tribunal's decision should be set aside because it was affected by jurisdictional error. Consequently, the application deserves to be dismissed simply for failing to plead a recognisable claim of error on the Tribunal's part and because it invites the Court to undertake review of the merits of the Tribunal's decision, a thing which it is not empowered to do. Notwithstanding the applicant's oral submissions today, it might be possible that the application sought to allege that the Tribunal failed to exercise its powers properly when considering the application which was before it. Were that to be what was intended by the pleading it would be a claim which has not been made out. It is not apparent from the consideration of the Tribunal's decision record or from anything which the applicant said today, that the Tribunal's decision is affected by jurisdictional error." 11 I see no error in the reasons of the federal magistrate and I am not satisfied that the decision is attended by sufficient doubt to warrant a grant of leave to appeal. 12 In the circumstances, the application for leave to appeal is dismissed. The orders of the Court are: 1. The application for leave to appeal dated 18 February 2009 is dismissed. 2. The applicant is to pay the first respondent's costs of the application. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.