SZACX v Minister for Immigration - [2003] FMCA 305

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZACX v MINISTER FOR IMMIGRATION

[2003] FMCA 305

MIGRATION – Review of RRT decision – application for a protection visa – whether the applicant has a well-founded fear of persecution for reasons of political association – where the applicant seeks a merits review.

Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259
Abebe v The Commonwealth (1999) 197 CLR 510

Applicant:

SZACX

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 3 of 2003

Delivered on:

18 Ju1y 2003

Delivered at:

Sydney

Hearing date:

18 July 2003

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Self-represented

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 3 of 2003

SZACX

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh who arrived in Australia on

18 July 2000 using another person's passport. On 17 August 2000 he lodged an application for a protection (Class XA) Visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 21 September 2000 a delegate of the Minister refused to grant him a protection visa and on 21 October 2000 the applicant applied for a review of that decision by the Refugee Review Tribunal.
The Tribunal advised the applicant that it was unable to come to a favourable decision on the papers and offered him the opportunity to attend a hearing. The applicant accepted this opportunity and sought the advice of an immigration consultant who communicated with the Tribunal. On 5 November 2002 the applicant gave oral evidence at the Tribunal which came to a decision to affirm the decision of the delegate on 11 November 2002 and handed that decision down on

5 December 2002.
The applicant comes to this court seeking review of the decision of the Tribunal. He was formerly represented by a solicitor but on 7 July 2003 that solicitor withdrew his appearance having given certain advice to the applicant which the applicant did not accept. The applicant then filed some submissions of his own on 10 July 2000 and at the hearing before me through his interpreter advised that he relied solely on those submissions.
The applicant claimed to have a well-founded fear of persecution for the Convention reason of political opinion. It was expressed to the Tribunal as arising from the applicant's involvement in the student and then youth wings of the Bangladeshi National Party (BNP). The applicant claimed that his involvement with that organisation existed during the time that others were in power in Bangladesh and he was singled out for persecution by members of the Awami League.
The applicant claims that he became involved in a false claim being made against him connected with a dispute between his uncle and his aunt and most seriously, that during the course of that dispute he was taken aside by persons he believed to be members of the Awami League and shown a pistol and threatened, as he says:
“With a revolver to quit politics of BNP.”
He claims that on 1 March 2001 one of his colleagues had been killed although by that time he was in Australia. After the incident with the gun he made arrangements to leave the country utilising a false passport which he purchased for the sum of approximately $A15,000.
The applicant told the Tribunal that he feared that if he returned to Bangladesh he would still be in danger from members of the Awami League and that the fact that BNP was now in power would not protect him because the BNP was only in power in coalition. The applicant did not accept the country information referred to by the Tribunal which indicated that the courts of Bangladesh readily dismissed false charges brought against people.
In his submissions to the court the applicant states that he believed that he had a genuine fear of persecution and that the RRT did not believe his oral submission. He comments that he does not believe he could relocate to another part of Bangladesh and that the Tribunal did not understand the gravity of the danger which he faced from the Awami League. He repeats some of the history that he gave to the Tribunal and then claims that the judiciary in Bangladesh is not as good as the judiciary in Australia and as a poor person he did not believe that he could get justice in court. He stated that the Tribunal Member never realised the real situation and did not give significant importance to the nature of the violence that exists in Bangladesh.
It will be evident from the nature of these representations that the applicant has misunderstood the powers of this court. What he appears to be seeking is a further review of the merits of his claim because he does not agree with the conclusions reached by the Tribunal however, he does not indicate that the Tribunal's decision was reached in a manner which establishes jurisdictional error on its part.
The Tribunal expresses its findings and reasons between [CB 97 and CB 103] and gives the applicant the benefit of the doubt in relation to his claims concerning his association with the BNP Youth Wing and the incident on 14 May 2000 when he was called out of court and threatened with a pistol. However, the Tribunal did not accept that the incident was motivated by a Convention related reason but rather, that it was done in order to intimidate the applicant not to support his uncle in the court case with his aunt. This finding by the Tribunal was open to it upon the evidence, in particular the applicant's inability to establish that any of the three men who threatened him were closely associated with the Awami League.
The applicant also alleged that false charges had been laid against him by members of the Awami League. The Tribunal's view as to that was that it did not accept from what it described as the "somewhat vague and unspecific case he claims was made against him" that such proceedings had really been started. But even if they had, the Tribunal relied on the country information which it put to the applicant that most of these false cases had been dismissed by the appropriate courts. The applicant relied on the existence of the false claims to support his evidence that he had heard that the police came to his home almost every day to arrest him. The Tribunal did not believe that the nature of the case against him would warrant such a serious reaction.
In his helpful written submissions Mr Reilly at paragraph 5 says as follows:
“It is apparent that the applicant was unsuccessful because of the view the Tribunal took of the facts, in particular its rejection of the applicant's claims to fear harm from the Awami League and its finding that the incident of 14 May 2000 was not motivated by any Convention reasons. The Tribunal correctly looked to the motivation of those threatening the applicant on this occasion: Ram v MIEA (1995) 57 FCR 565. At 568 per Burchett J: Applicant A v MIEA (1997) 190 CLR 225 at 240-242 per Dawson J, at 258 per McHugh J, at 284 per Gummow J.
Its conclusion that they were motivated by a Convention reason necessitated the failure of the applicant's claim. The court cannot review the merits of the Tribunal's decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272 and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v The Commonwealth (1999) 197 CLR 510 at [137]. The Tribunal's findings were open to it for the reason it gives.”
I adopt that reasoning with gratitude. I am unable to find that there are any grounds upon which this application can be reviewed and I therefore dismiss it. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000 in accordance with Federal Magistrates Court Rules, Part 21 Rule 21.02(2)(a).

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: