SZHJT & Ors v Minister for Immigration and Citizenship & Anor

REASONS FOR JUDGMENT 1 The appellants are Bangladeshi. They are a husband and wife and their daughter. The husband and wife are in their late forties and the daughter is 15. 2 On arrival in Australia they sought protection visas under the Refugees Convention on the ground that the husband had a well-founded fear of persecution on the basis of his political opinion, namely, that he was a member of the Jatiya Party and a supporter of its founder Ershad. 3 The applications were unsuccessful. The Refugee Review Tribunal also determined that the appellants were not entitled to protection visas. However, an appeal to the Federal Court of Australia was successful. The Refugee Review Tribunal, differently constituted, accordingly conducted another hearing and reconsidered the claim. Again, the appellants were unsuccessful. They applied for review to the Federal Magistrates Court where they were again unsuccessful and they now appeal to this court. 4 The Migration Act 1958 (Cth) commits the ultimate determination of the facts in refugee cases to the Refugee Review Tribunal. That Tribunal considers the matter afresh and on its merits. It is not a court. It substitutes its decision for that of the Minister, which is usually made through his delegate. The Parliament, representing the people, has created two tiers of decision-making during which an applicant for a protection visa has an opportunity to put forward a case on the facts. 5 The rights of persons claiming to be refugees in Australia do not, however, stop there. For practical purposes there is a review of the decision of the Refugee Review Tribunal in the Federal Magistrates Court with an appeal to this Court. The appeal is, however, confined to an error of law amounting to jurisdictional error. 6 Behind every application for a protection visa lies a factual basis. The factual basis which the appellants assert in this case is that the husband fears persecution because of his membership of the Jatiya party. A factual issue for determination in connection with that claim is the nature and extent of the husband's membership of the party and its association with potential persecution. The Refugee Review Tribunal, constituted by Mr Luke Hardy, did "not accept that the [husband] had any significant role in the [Jatiya] party". The Tribunal found that his evidence was "vague, evasive, confused and contradictory". It declined to give weight to written testimonials and to the evidence of a witness called by the husband. The Refugee Review Tribunal accordingly found that the facts were not as the appellants claimed them to be. That is the reason they were unsuccessful. I have no jurisdiction or power to reconsider the facts. 7 The reality of this case is that the appellants have lost it on the facts. However, the only appeal relates to the law. Accordingly any appeal must address the law and not the facts. That raises problems for the many appellants who are in the same position as the appellants here. However, if there is a jurisdictional error an appeal will be successful. Accordingly, I now turn to that question. 8 The notice of appeal contains two grounds. The first is a bald assertion of jurisdictional error. The second asserts that the Federal Magistrate, in paragraph [31] of the reasons for judgment, "did not consider the Tribunal's obligation to the applicant regarding the letter of the witness". 9 The appellants have filed written submissions. They appear to raise five grounds, as follows: