SZAGN v Minister for Immigration - [2003] FMCA 546

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAGN v MINISTER FOR IMMIGRATION

[2003] FMCA 546

MIGRATION – Review of RRT decision – where applicant claimed Tribunal had reached its decision prior to the hearing thus denying him natural justice – where applicant claimed RRT refused to accept relevant information from him – whether substantial time span between lodging appeal with RRT and Tribunal hearing was relevant to such a refusal.

Judiciary Act1903 (Cth), s.39B

Applicant:

SZAGN

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 359 of 2003

Delivered on:

20 November 2003

Delivered at:

Sydney

Hearing date:

20 November 2003

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Applicant in Person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay the Respondent’s costs in the sum of $5,000.00 pursuant to Part 21 Rule 21.02(2)(a) Federal Magistrate’s Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 359 of 2003

SZAGN

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He arrived in Australia on 16 November 2000. On 28 December 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 4 April 2001 a delegate of the Minister refused to grant a protection visa and on 29 April 2001 the applicant applied to the Refuge Review Tribunal for review of that decision.
The applicant, through his adviser, submitted information to the Tribunal on 13 February 2003 and attended a hearing before the Tribunal on 17 February 2003. At the end of the hearing the Tribunal gave the applicant a letter, which is found at [CB 267]. He indicated that the Tribunal had decided that he was not entitled to a protection visa. On 19 February 2003 the Tribunal provided the applicant by post with a copy of its reasons.
The applicant has sought review of the decision of the Tribunal. In his application he indicated that he was a genuine refugee and that he had supplied enough documents supporting his protection claim, but that the Tribunal had not considered them. It is stated that in his opinion the Tribunal had made its decision prior his hearing, and that therefore the Tribunal did not follow the proper procedures and thus denied him natural justice.
On the 20 October 2003 the applicant provided a written submission of four paragraphs. He stated that the Tribunal had told him that his adviser had submitted a number of claims for other people that had the same pattern as his claim. He stated that the Tribunal asked him if he had a copy of those other claims and he said that he had not. He pointed out that the Tribunal did not show him these other claims and therefore he did not know what was in them. He said that he could not say any more because he did not know what these matters were.
The applicant complained that the Tribunal did not believe him concerning the existence of outstanding charges against him. He said that he had asked the Tribunal for three weeks to allow him to produce documents from Bangladesh that would prove those matters. The Tribunal refused him that time. He noted that he had given the Tribunal about a hundred pages of documents from the internet about the political situation in Bangladesh. He said that the Tribunal would not read them before it gave him its written decision. Before me today he said that the Tribunal told him that it knew everything about Bangladesh. He said that he could not say things in front of the Tribunal because of his feelings. He said that the Tribunal hearing lasted for three hours and he felt under considerable pressure.
When this case came before me originally the applicant stated that the Tribunal had given him its decision immediately because of the remarks which the Tribunal had made concerning another application, which was similar in form to that of the applicant. I determined that it was appropriate that the applicant should have the opportunity to receive pro bono legal assistance before the case was determined.

I made a statement concerning this which was transcribed.
Pro bono legal assistance was obtained for the applicant and a copy of all the relevant papers, including my statement was sent to the pro bono solicitors. The applicant also received advice under the Minister's scheme. He filed in court on 20 October 2003, a copy of an opinion by Mr R B Wilson of counsel. I asked the applicant today whether he wished that opinion to be considered by the court and explained to him that he had the right to claim legal professional privilege in regard to it. If did so, neither myself or Mr Reilly would make reference to it. The applicant told me that he wished the opinion to be considered by the court.
This applicant has therefore had two sets of legal advice. And in those circumstances, although he is appearing in person, I felt that it was appropriate that he should receive no further assistance from the bench and that the case should proceed and be heard on the basis of what he told me today, from what was contained in his application and other documents.
The applicants claim to have a well founded fear of persecution for the convention reason of political opinion arises out of his allegation that he was high ranking member of Chattra Dal, a student wing of the Bangladesh National Party. In that position he became involved in political activity and was vocal against the terrorist activity of the Chattra League, which was the student wing of the Awami League. He appears to have been involved in violent clashes with his political opponents. He was once arrested, but paid a bribe to be released. The applicant claims that approximately five false charges were raised against him between 1999 and 2000.
The Tribunal was critical of the applicant's evidence. In short, it did not believe him. There were a number of reasons for this. Firstly, the Tribunal took the view that the nature of the case presented in earlier documents differed quite markedly from the nature of the case presented at the hearing [CB 286]. Secondly, the pattern of the applicant's claims was very similar to the pattern of a claim made by the same adviser in relation to other matters.
The Tribunal also held that mere membership of the BNP was not at the present time sufficient to cause it to believe that there was risk of persecution. The Tribunal relied on country information in this decision.
As Mr Wilson says in his thorough advice:
“In the final analysis though, the actual decision of the Tribunal appears to be that, on the basis of what was said at the hearing, the highest the applicant's case can be put is that he might face danger from his old opponents or the police should he retur`n to Dhaka or Khulna [CB 289]. This in effect is a finding that the applicant's fears are reasonably based on some facts which unfortunately the Tribunal does not specify in its reasons. However, it then went on to hold:
“(i)That the applicant could relocate within Bangladesh [CB 290]. This conclusion was clearly open to the Tribunal on the materials that were before it; and
(ii) that if the applicant does have the enemies that he claimed and if he has to answer charges brought against him by the authorities, his fears arising therefrom, are not by reason of his past political activities. This conclusion was also open on the materials.”
On the basis that relocation was possible, any errors arising from the materials and findings discussed above were not material for one of the Tribunal's ultimate reasons for decision.
Having considered the Tribunal's reasons for decision and heard the applicant, I accept that the Tribunal's reasons for decision expressed at [CB 292]:
“There are several significant differences between the claims made by or on behalf of the applicant before the hearing and the claims made by the applicant at the hearing. When viewed against the country information, the cumulative impact of these differences and of certain other aspects of his claims and personal circumstances and behaviour mentioned above is such that I conclude that the applicant did not and does not have a genuine fear of persecution for a Convention reason and that he has no well-founded fear of persecution within the meaning of the Convention.”
is one which the Tribunal was entitled to come to on the basis of the evidence before it. There is no evidence before me that the Tribunal refused to accept relevant information from the applicant. It is his assertion, it is not his evidence. However, even if the Tribunal had declined to accept the one hundred pages of documentation which the applicant put to it (and I do not think it did, because the applicant told me that his concern was that it had not been read) the Tribunal was entitled to do this. The applicant had first communicated with the Tribunal on the 29 April, 2001 when he told it that he would provide his submission as soon as possible. His hearing did not take place for almost another two years.
I am unable to find, in all the circumstances, any grounds upon which the applicant is entitled to a review of this decision under s 39B of the Judiciary Act 1903 (Cth). I dismiss the application. I order that the applicant pay the respondent's costs which because of the requirement for an adjournment I assess in the sum of $5,000 pursuant to Part 21, Rule 21.02(2)(a) the Federal Magistrate’s Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: