SZAHH v Minister for Immigration - [2003] FMCA 493

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAHH & ANOR v MINISTER FOR IMMIGRATION

[2003] FMCA 493

MIGRATION – Review of RRT decision – application for a protection visa – where the applicant claims to have a well-founded fear of persecution for reasons of political opinion – where the tribunal was not satisfied with the evidence provided by the applicant relating to harassment suffered and political association.

Judiciary Act 1903 (Cth), s.39B

Re: MIMA; Ex parte Durairajasingham (2000) 168 ALR 407
Kopalapillia v MIMA (1998) 86 FCR 547
MIEA v Wu Shan Liang (1996) 185 CLR 259

Applicant:

SZAHH & ANOR

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 422 of 2003

Delivered on:

30 October 2003

Delivered at:

Sydney

Hearing date:

30 October 2003

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in Person

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 $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 422 of 2003

SZAHH & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

There are three applicants in this matter. Insofar as the minor applicant whose pseudonym is SZAHJ is concerned I order that his father whose pseudonym is SZAHH be appointed his litigation guardian to Part 11 Rule 11.11 of the Federal Magistrates Court Rules. The respondent has indicated that he will not seek costs against the minor applicant. Because the minor applicant and the second applicant are only making claims for asylum on the basis of being part of the family unit of the first applicant I shall refer in this matter only to the first applicant.
The first applicant arrived in Australia in February 1992 on a student visa (Class TU). His visa permitted overseas travel. His most recent return to Australia from Bangladesh was on 13 April 1997. The second named applicant first arrived in Australia on a student visa (Class TU) on 11 June 1997. The third named applicant was born to her in Australia on 20 March 1999.
The applicant lodged an application for a Protection (Class XA) Visa on 1 May 2000. On 5 June 2000 a delegate of the Minister refused to grant a protection visa and on 15 June 2000 the applicant applied for a review of that decision. The Tribunal determined to call a hearing into the matter and that was scheduled for 20 June 2002. The Tribunal made its decision on 30 January 2003 and handed it down on 25 February 2003. The Tribunal affirmed the decision of the delegate not to grant protection visas.
The applicant claims to have a well-founded fear of persecution for the Convention reason of political opinion. It arises from his assertion that he was a well-known political activist connected with the Jamaat-e-Islami (student wing) which he joined in 1987 whilst he was completing his diploma in radiography in Dhaka. He stated (and his claims are found between [CB 89 - 90]) that on 5 February 1989 he went to Saudi Arabia to study Arabic and remained in that country until 1992. He told the Tribunal that he continued his relationship with the party during that time and was active in arranging demonstrations against the Bangladeshi Government whilst in Saudi Arabia.
In 1992 the applicant came to Australia and appears to have remained outside Bangladesh until he returned to that country on 14 February 1997. He stated to the Tribunal that he did that with the help of an agent in order to observe the political situation. He claimed that at that time he was wanted in Bangladesh because of his political opinions and his activity in the Jamaat-e-Islami and in particular his work in Bangladesh.
Whilst the applicant was in Bangladesh in 1997 he took the opportunity to get married. He says that there were false claims lodged against him by the BNP Government that was in power between 1992 and 1996 and that those false claims were continued by the Awami League which was in power from 1996 to 1999 and that those cases are still outstanding under the current BNP Government. The applicant then returned to Australia in April 1997, his wife followed in June and he has not left the country since.
The Tribunal notes that other than a claim that an assault was occasioned upon him during the government of President Ershad the applicant was unable to provide any other specific instances of harm to him. The Tribunal was critical of the applicant because of his inability to provide satisfactory evidence of harassment that he claimed in Saudi Arabia or of the harm which he suffered after he returned in 1992 from Saudi Arabia apart from the alleged fabricated charge. The applicant was also unable, so the Tribunal found, to provide any evidence either of this fabricated charge or of his association with the Jamaat-e-Islami. Notwithstanding that the Tribunal said that it was prepared to accept that he was a member of that group but went on:
“With the paucity of evidence before it other than his assertion that he was a well-known political activist, the Tribunal is not able to accept that he held any leadership position in either group or that he was a recruiter or an organiser of demonstrations in Saudi Arabia.”
The Tribunal, relying on country information which is contained in the court book and its own knowledge of the activities of the Saudi Arabian Government towards persons who organise the demonstrations in that country, came to the view that it could not accept the applicant's evidence in this regard. The Tribunal noted that the applicant had had no difficulty in obtaining a passport or in having that passport renewed whilst he was in Australia. The Tribunal did not find credible the applicant's claim that political opponents from his 1992 stay in Saudi Arabia or Bangladesh were still looking for him.
The applicant filed an application in this court on 24 March 2003 in which he stated that he was a genuine refugee and the Tribunal did not consider his case according to the UN Convention. He also said that there was no material to justify the making of a decision and that the Tribunal's decision was affected by an error of law.
Notwithstanding the standard orders that were made by the Registrar the applicant did not provide an amended application or an affidavit. When he appeared before me today the applicant proceeded on the basis that I was empowered to reconsider his claims and to make a finding that he was a genuine refugee. He told me that he didn't think the Tribunal could justify his case or made the appropriate inquiries where it was necessary.
Mr Reilly submits that it is apparent that the applicant was unsuccessful because of the view the Tribunal took of the facts and in particular its findings that the applicant's claims were not credible. He quotes the well-known dicta from McHugh J in Re: MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. I agree with this submission and with Mr Reilly's submission that so long as the Tribunal's credibility findings were open to it no error is demonstrated in such conclusions; Kopalapillia v MIMA (1998) 86 FCR 547 at [558-559].
Mr Reilly rightfully points out that the applicant did not particularise any error in the Tribunal's decision and was appearing to seek merits review with his submissions to this court; MIEA v Wu Shan Liang (1996) 185 CLR 259 at [272].
I have considered the court book and I am satisfied that the Tribunal has come to its conclusions based upon evidence that was available to it which has been clearly set out. Its reasons and conclusions can be seen to have been arrived at from a consideration of the evidence before it. There does not seem to me to be any matter other than one of fact that could give cause for concern about this decision and I therefore find that there are no grounds upon which it can be reviewed under section 39B of the Judiciary Act. I dismiss the application.

I order that the applicant pay the respondent's costs which I assess in the sum of $4250 pursuant to Part 21 rule 21.02(2)(a) of the Federal Magistrates Court Rules.

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

Associate:

Date: