SZUGQ v Minister for Immigration and Border Protection

1. The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PAGONE J: 1 This is an application for leave to appeal from a judgment of the Federal Circuit Court of Australia delivered on 13 November 2015. The Federal Circuit Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal (as it then was) made on 11 May 2015 pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth). The Tribunal had affirmed a decision made by a delegate of the Minister for Immigration not to grant the applicant a protection visa. The applicant appeared without legal representation but was assisted by an interpreter in the Bengali language. 2 The applicant needs leave to appeal from the judgment of the Federal Circuit Court, because the judgment was interlocutory in nature: Federal Circuit Court Rules 2001 (Cth) r 44.12(2). The principles relevant to the application for leave to appeal were considered in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. The applicant must show for leave to appeal to be granted, that there is sufficient doubt about the correctness of the judgment from which leave to appeal is sought to warrant leave being granted. The applicant must also show that substantial injustice would result if leave to appeal were refused, supposing the judgment below to be wrong. 3 The application for leave to appeal in this case was stated as: 1. My life is in danger in my home country. 2. Present government of Bangladesh do not tolerate any opposition activities. 3. Federal Circuit Court did not consider the present situation in Bangladesh. The applicant has also filed a draft notice of appeal, which sets out the following proposed grounds of appeal: 1. The Court failed to consider the present law and order situation in Bangladesh: systematic abduction, harassment even judicial and extra-judicial killings that are killing many BNP activists like me 2. One of my documents didn't reach the RRT even though I had handed it to my representative in time. I believe if it was considered the outcome of the case might be in my favour. Neither the grounds of the application for leave to appeal nor the proposed grounds of appeal establish any doubt about the correctness of the judgment of the Federal Circuit Court. The applicant made oral submissions at the hearing in which he repeated and in some cases amplified these grounds. He submitted that the evidence he had given in the Tribunal and to the Federal Circuit Court was correct but that he had not been believed. He submitted that the Tribunal had not considered what would happen to him if he went back to Bangladesh. He submitted that he could arrange witnesses to support his case if the Tribunal required them, and that he could bring witnesses from the church to support his case. He also submitted that there had been people killed recently and that the political problems affecting the applicant continue in Bangladesh. He also said that he had a document that was to have been sent to the Tribunal but had not reached the Tribunal because of a failure by his representative at the time. 4 The grounds of the application for leave to appeal, including those amplified or repeated orally by the applicant, and the first proposed ground of appeal, seek impermissible merits review of the decision of the Tribunal. The second proposed ground of appeal was raised before the Federal Circuit Court and was considered by the Court at paragraphs [10] to [16] of the judgment: 10. The applicant filed an affidavit pursuant to those orders that annexed a document dated 4 May which the applicant alleged was sent to the representative to deliver to the Tribunal on 5 May 2012. There is no other evidence that the applicant has put on to support the delivery of the document by the representative to the Tribunal and I find that the document was not delivered to the Tribunal. 11. In those circumstances, it is not a document which is relevant to establishing any jurisdictional error by the Tribunal. 12. The applicant was desirous of the court having regard to the document and remitting the matter back to the Tribunal to reconsider its decision and take into account the document annexed to the affidavit sworn on 6 August 2015. 13. The Court has no power to send the matter back to the Tribunal to reconsider its decision unless satisfied that there is a jurisdictional error. 14. The applicant maintained that the document was relevant and that his life was in jeopardy. 15. This Court has no power based on compassionate grounds to revisit a decision of the Tribunal. 16. I find that the document that was annexed to the affidavit was not before the Tribunal and in those circumstances is not relevant to the application for judicial review. For those reasons of irrelevance the document was rejected from being admitted into evidence. The Federal Circuit Court was correct to conclude that the Tribunal could not fall into jurisdictional error by failing to consider a document which was not before it. Nothing said by the applicant in his oral submissions would justify taking a different view. 5 The applicant has not shown that there is sufficient doubt about the correctness of the judgment of the Federal Circuit Court to warrant leave to appeal being granted. Accordingly, the application for leave to appeal is refused. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Pagone.