SZAHL v Minister for Immigration
[2003] FMCA 545
•20 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAHL v MINISTER FOR IMMIGRATION | [2003] FMCA 545 |
| MIGRATION – Review of Refugee Review Tribunal decision – where applicant alleges RRT failed to consider his fear of persecution – where applicant essentially seeking a review of the Tribunal’s findings of fact. |
Kamal v MIMA [2002] FCA 818
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Waterford v The Commonwealth (1987) 163 CLR 54
| Applicant: | SZAHL |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 426 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: | Blake Dawson Waldron |
ORDERS
Application dismissed.
Applicant to pay Respondent’s costs in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) Federal Magistrate’s Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 426 of 2003
| SZAHL |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is a citizen of Bangladesh. He arrived in Australia on 26 April 2001. On 3 May 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration, Multicultural and Indigenous Affairs. On 10 May 2001 a delegate of the Minister refused to grant him a protection visa and on 6 June 2001 he applied to the Refugee Review Tribunal for a review of that decision. The Tribunal arranged a hearing which took place on 3 March 2003. On that date the Tribunal affirmed the decision of the delegate. On 6 March 2003 the Tribunal provided its reasons.
The applicant's claim to have a well founded fear of persecution for the Convention reason of political opinion arises out of his alleged involvement with Chatra Dal, the student wing of the BNP. He was an active member of that organisation from 1990 until 2001. In 1991 he was elected general secretary at his college. In 1994 he was elected cultural secretary at the same college and in August 1998 he was nominated as the president for the Charfassion area.
The applicant described to the Tribunal a history of clashes with the Chatra League, which is the Youth Wing of the Awami League. He described a shooting incident in February 2001 and the death of a party activist in January of that year.
The applicant was questioned by the Tribunal in relation to the matters which he claimed caused him to fear for his safety. The Tribunal pointed out a number of inconsistencies in his statements [CB 117]. The Tribunal also suggested to the applicant that it was clear that at most he had difficulties in two out of the 64 districts in Bangladesh and he could have relocated rather than leave Bangladesh for Australia. During the course of the hearing the applicant made some additional claims concerning the Jamaat-e- Islami.
The Tribunal noted that the applicant's claims had changed over the course of time so that they fitted in with the current situation or situations in Bangladesh. First he made a claim that he would suffer persecution from the Awami League. Then when the BNP achieved power he alleged that Awami League members had joined the BNP and, finally, he made a claim concerning the danger to him from the BNP's junior coalition partner the Jamaat -e- Islami.
The Tribunal was unimpressed. It took the view that the applicant was changing his story so as to provide a proper basis for his claims. The Tribunal noted that there was a considerable period of time between the applicant obtaining his passport and his leaving the country and that, together with the changes in the story and the applicant's demeanour, gave it cause to believe that the applicant lacked credibility and a genuine fear of persecution.
The application which was filed in this matter notes that the applicant is totally disappointed by the RRT decision because the member failed to bring into account his fear of persecution if he had to go back to Bangladesh. It stated that the applicant was agrieved that the Tribunal member did not consider him a genuine refugee. It noted that the Tribunal member did not take into account the gravity of false cases brought against him or the fact that a previous attempt was made to kill him. He suggested that the Tribunal member's decision was conventional, unfair, unjustified and was based on unreliable sources without any verification.
When the applicant appeared before me he told me that the member could not understand the merit of his application. He repeated that he was a genuine refugee and that he had a real fear of persecution if he returned to Bangladesh. He asked the court to reconsider his case.
There was provided to the court a facsimile of 12 November 2003, a document which the applicant says was prepared for him by a friend. This document makes reference to a number of cases but the applicant informed me that he did not wish to rely upon it. It is a document which I have seen before and to my mind the concession was well made.
The applicant has not put to me anything which would suggest that the Tribunal fell into jurisdictional error in the manner in which it came to its decision. The conclusions of the Tribunal appear to me from a reading of the court book to be based upon available evidence and as was said in Kamal v MIMA [2002] FCA 818 at [36]:
“It is not for the court, on reviewing a decision of the Tribunal, to form its own view as to whether it would have given the perceived inconsistencies the significance attributed to them by the Tribunal or upon any such view to conclude that the Tribunal's assessment of the applicant's claims should not have been made. Those evaluative processes are for the Tribunal.”
It seems to me that any conclusions that the Tribunal has come to in this case are essentially conclusions of fact and it is clear from Abebe v Commonwealth of Australia (1999) 197 CLR 510 following Waterford v The Commonwealth (1987) 163 CLR 54 that there is no error in law in making a wrong finding of fact.
In the circumstances there is nothing in the papers which gives me an opportunity to review the decision of the Tribunal. I must dismiss this application which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate’s Court Rules.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM
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