SZACN v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 836

FEDERAL COURT OF AUSTRALIA

SZACN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 836

SZACN V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 647 of 2003

MOORE J
8 AUGUST 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 647 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZACN APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	8 AUGUST 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs.

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	N 647 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZACN APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	8 AUGUST 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an appeal from a judgment of a Federal Magistrate given on 12 May 2003.  The appellant is a citizen of Bangladesh.  He arrived in Australia on 6 June 2000.  On 28 June 2000 he applied to the Department of Immigration and Multicultural and Indigenous Affairs for a protection (class XA) visa.  On 30 June 2000 a delegate of the Minister refused to grant him the visa.  On 12 July 2000 the appellant applied to have the decision of the delegate reviewed by the Refugee Review Tribunal (the “Tribunal”).

2. On 29 October 2002 the Tribunal heard evidence from the appellant.  It affirmed the decision of the delegate on 30 October 2002.  The decision of the Tribunal was handed down on 21 November 2002.  The appellant subsequently applied to the Federal Magistrates Court for the judicial review of the Tribunal’s decision.  The Federal Magistrate gave judgment on 12 May 2003 dismissing the application.

   The decision of the Refugee Review Tribunal

3. In summary, the appellant’s claims were as follows.  He joined the Freedom Party in about 1994.  His active involvement with this party resulted in false charges of treason and terrorist activities being laid against him by the Awami League Government in 1996 or 1997.  He had been able to avoid arrest and capture by the authorities, leaving Bangladesh on another man’s passport.  The appellant feared arrest, imprisonment or torture if he returned to Bangladesh.

4. In a section entitled ‘Findings and Reasons’ the Tribunal indicated it was satisfied that the appellant was a Bangladeshi citizen, that he had been active in the Freedom Party and that he feared that if he was to return to Bangladesh he would be persecuted by the authorities because he had been a member and activist for the Freedom Party.  The Tribunal found that he had been able to avoid arrest and leave Bangladesh on another man’s passport.

5. However, when the Tribunal made its decision, the Awami League was no longer in power.  The Tribunal found no evidence that the current government was seeking to harm Freedom Party activists.

6. The Tribunal indicated it was not satisfied that there was a real chance that the appellant would be arrested and mistreated or that he would be persecuted or falsely convicted of any charges he may face in Bangladesh, should he return.  It was not satisfied that he would be denied a fair trial if any of the charges against him were to proceed.  Ultimately, it was not satisfied the appellant had a well-founded fear of persecution.

   Decision of the Federal Magistrates Court

7. In his application to the Federal Magistrates Court the appellant set out five reasons that he was aggrieved by the decision of the Tribunal.  First, the Tribunal had failed to consider his fear of persecution.  Second, the Tribunal had not considered him as a refugee.  Third, the Tribunal ‘did not bring into account the gravity of those false charges brought’ against him, in particular, the ‘undue harassment’ and his assertion that he ‘could receive justice from the Courts – as the justice system in Bangladesh is greatly influenced by the administration’.  Fourth, the Tribunal ‘did not bring into account’ that he ‘would be sentenced or prosecuted for’ his ‘previous freedom party political profile in Bangladesh’.  Fifth, the decision of the Tribunal was ‘unfair, unjustified and was based on the very conventional way of refusing an application’.

8. In his reasons for judgment, the Federal Magistrate briefly set out the procedural history and the claims of the appellant.  His Honour found at [6] that:

   the major difficulty the applicant faced in persuading the Tribunal that he was owed protection obligations by Australia was the fact that the Awami League is no longer in power in Bangladesh. 

   His Honour also pointed to the Tribunal’s finding that although false charges had been laid against a number of people by the Awami League Government, the courts in Pakistan had generally thrown those cases out. 

9. The Federal Magistrate dealt with three other matters.  The first was the Tribunal’s use of the expression ‘I am not satisfied’ as possibly not clearly stating whether a finding of fact had been made.  His Honour found that ‘the context’ in which the expression had been used made it clear that the Tribunal had been making findings.  The second was whether the finding that the appellant did not have a well-founded fear of persecution for a Convention reason was open to the Tribunal on the evidence.  His Honour was satisfied that it was.  The third was the nature of the role of the Court.  The appellant, when invited to explain in his own words why he believed the Tribunal had erred, had stated that he had no specific things to say but that he wished the Court to look at the papers once again.  His Honour indicated that he was being invited to conduct a merits review, which he correctly said was not a course open to him.

   The Appeal to this Court

10. The appellant appeals against the judgment of the Federal Magistrates Court on three grounds.  The first ground is that the Tribunal member failed to ‘assess his level of persecution that he had been facing due to his active involvement in freedom party politics in Bangladesh’.  The second is that ‘the Tribunal did not grant the appellant a protection visa although he has enough convention based persecution’.  The third is that the Tribunal ‘did not visualise the seriousness of the appellant’s persecution whilst 15 members of the same freedom party were sentenced to death’.

11. Nothing was put by the appellant or is otherwise apparent from the material before the Court which suggests error on the part of the Tribunal or the Federal Magistrate.

12. Accordingly, the appeal should be dismissed with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Moore.

Associate:

Dated:            8 August 2003

The appellant appeared in person with an interpreter.
Counsel for the respondent:	Mr M Wigney
Solicitor for the respondent:	Australian Government Solicitor
Date of Hearing:	5 August 2003
Date of Judgment:	8 August 2003