SZAHM v Minister for Immigration - [2003] FMCA 554

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAHM v MINISTER FOR IMMIGRATION

[2003] FMCA 554

MIGRATION – Review of decision of RRT – where applicant did not attend RRT hearing or provide documentation – whether court should order review to allow applicant more time to put his claims.

Migration Act 1958 (Cth) s.426A(1)

MIEA v Wu Shan Liang (1996) 185 CLR 259
Abebe v The Commonwealth (1999) 197 CLR 510
Waterford v The Commonwealth (1987) 163 CLR 54

Applicant:

SZAHM

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 436 of 2003

Delivered on:

24 November 2003

Delivered at:

Sydney

Hearing date:

24 November 2003

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Solicitors for the Respondent:

Ms B Rayment of Sparke Helmore

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $3,250.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 436 of 2003

SZAHM

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 12 June 2001 and on 21 June 2001, he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 24 September 2001 a delegate of the Minister refused to grant him a protection visa and on 2 October 2001 the applicant applied for review of that decision by the Refugee Review Tribunal. On 24 December 2002 the Tribunal offered the applicant a hearing [CB 37‑38] and on 7 January 2003 the Tribunal wrote to the applicant reminding him that on 21 June 2001, he had undertaken to provide a number of documents. The Tribunal requested that those documents be received by 30 January 2003. The applicant was advised that if the documentation was not received by that time the Tribunal would proceed to make a decision on his case without further notice.
The applicant did not respond to the letter of 6 January and did not appear before the Tribunal. The Tribunal therefore proceeded (as it was entitled to under s 426A(1)) of the Migration Act 1958 (Cth) in the absence of the applicant.
The Tribunal noted that the applicant's claim to have a well founded fear of persecution was based upon the convention reason of political opinion. The facts which supported this alleged fear were that he was a member of the BNP at a time when the Awami League were in power in Bangladesh. The Tribunal referred to the responses the applicant had made in his application at [CB 49]. The applicant had said in that form:
“ Since the current ruling party came to power in July 1996, I faced a lot of political problems and harassment but never thought of leaving my own soil for safety or refuge anywhere overseas. But the current situation created by the AWAMI League, targeting the next general election and their desperate ambition returning to power again, turned my life upside down. As a result at present my life is very unsafe and under continuous threat in Bangladesh.”
The Tribunal also noted that the applicant had described his fear in the following form:
“If I were to return to Bangladesh, I will be politically persecuted again and would further be prosecuted of politically motivated false charges as well. I am very much afraid of political persecution and intimidation which may cost my life and/or I will be thrown in jail for indefinite period without any fair trial. The sum and substance is that in all respects my life will be jeopardised by the Awami League hooligans and no one would dare come to my aid and stand in the current ruling party.”
The Tribunal found that it was unable to reach the requisite standard of satisfaction required of it by the Act in order to grant a protection visa for three reasons. First, the applicant's claims were lacking in detail. In this regard, the Tribunal noted the lack of detail provided by the applicant in relation to his claims of harm, the extent of his involvement in the BNP and the politically motivated false charges made against him [CB 60].
Secondly, the Tribunal accepted independent country information that indicated that the Awami League was no longer in power and that the BNP was the ruling Government. Accordingly, the Tribunal was satisfied that the applicant's primary reason for the persecution claimed no longer existed [CB 59].
Thirdly, the Tribunal accepted independent country information indicating that even if the applicant was at risk from the Awami League, he would be able to access adequate protection from the authorities [CB 59].
The Tribunal was unable to seek any further information from the applicant in relation to his claims because he did not attend the hearing. It was unable to address the documentation which he had promised to provide because that was not provided.
The applicant's details of claim made complaint that the Tribunal did not recognise him as a refugee, or consider the consequences of the false charges raised by the Awami League. He complained that the Tribunal did not consider that he was being targeted because of his political profile and that the Awami League terrorists may survive to do him harm when he returns to Bangladesh. When he appeared before me the applicant told me that the Tribunal did not "cite" about his problem. He wanted the Tribunal to consider his problem and decide accordingly. He said that because of political reasons, he was suffering a problem and the Tribunal did not mention that. He complained that the Tribunal just gave an overall discussion and cited reports. The Tribunal did not cite information about his locality, where he was suffering his problems. That was why he wanted the Tribunal to reconsider his problems and accurately make a decision. In reply to Ms Rayment, the applicant stated that it was true that his party was now in power, but the political conditions were such that it had failed to curb the activities of the terrorists in the Awami League. He did not have any physical security or safety in Bangladesh. The applicant submitted that the Tribunal had given him too short a time to provide any information to it and that if he was given further time, he could provide that information and he would co-operate.
It will be seen from the matters referred to above and from a reading of the Tribunal's decision that the applicant's complaints are essentially as to the merits of the Tribunal's decision. The court cannot review the merits of the Tribunal's decision; see MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272. As held by Kirby J at 291 to 292.
“The weight to be given to material before a decision-maker is reserved for that person, so long as he or she applies a correct legal text and does not reach a conclusion which is so unreasonable as to authorise review.”
Even if the Tribunal made a wrong finding of fact that would not be a matter upon which this court could grant review. See Abebe v The Commonwealth (1999) 197 CLR 510. There is no error of law in making a wrong finding of fact; Waterford v The Commonwealth (1987) 163 CLR 54 at 77 per Brennan J.
The applicant's claims about the Tribunal's decision have even less authority in this case where he did not accept the Tribunal's invitation to attend a hearing and thus advance his claims. He was also hindered by the fact that he had promised the production of certain documents in 2001 and yet had not produced them by 30 January 2003. It is not for this court to grant him time to produce those documents now and to send the matter back to the Tribunal for further consideration.
The Tribunal's decision was one which it was entitled to come to after a reading of the applicant's evidence and taking into account the independent country information. There is no suggestion that the Tribunal fell into any error of law, let alone jurisdictional error in the manner in which it came to its conclusion in this particular case. In those circumstances I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $3,250 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: