SZAHM v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 683

FEDERAL COURT OF AUSTRALIA

SZAHM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 683

SZAHM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 37 OF 2004

DOWSETT J
22 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 37 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAHM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	22 APRIL 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs of the appeal.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 37 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAHM APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	DOWSETT J
DATE:	22 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant claims to be a citizen of Bangladesh.  He arrived in Australia on 12 June 2001, on a visitor (Class TR) visa, which was granted in Dhaka on 4 June 2001, valid for a three months stay in Australia.  On 21 June 2001, he applied for a protection visa. 

2. In his application, he said:

   ‘My political beliefs and the previous political activities made my life insecure in Bangladesh.  Mainly after the recent political hostility and countrywide political violence instigated by the current Awami administration has compelled me to leave Bangladesh.  The political party I belong to is named “Bangladesh Nationalist Party”.  It is widely known to all that my party has a historical enmity with the present government party, i.e. The Bangladesh Awami League.  Since the current ruling party came in 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 the Awami League, targetting the next general election and their desparate ambition returning to power again, turned my life upside down.  As a result at present my life is very unsafe and under contineous threat in Bangladesh. 

   I trust that 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 would be thrown in jail for indefinite period without any fair trial.  The sum and substance is that in all aspects my life will be jeopardised by the Awami league hooligans and no one would dare to come in my aide and stand against the current ruling party. 

   The people associated with the Bangladesh Awami League party and with their other associate bodies are my main fear.  By this, I mean their arrogant and ferocious leaders and associates who always publicly claim that they are the only “Watchers of democracy” and the patriotic people in the country.  I am precisely targeted by them to be their next prey in the volatile Bangladeshi political arena. 

   I Strongly believe that the present Awami Government will not give me any protection instead they will put me in jail straight way like my other colleagues and leaders.  My previous bitter experience suggested me not to rely on their protection any more as the respective authorities in a no. of occasions refused me to do so while I approached them for the same.  In fact in Bangladesh justice and human rights are juggler of words and it is only in Black & White on the paper never properly implied.  The Bangladesh government never gives any assurance of safety for all its citizens, which is unimaginable in the context of Australian society and law.  If I were to return to back home I am sure that I would be in big trouble with the Awami people again and in extreme situation it may cost my life even.  Soon I will forward a statement detailing every issues and the reasons of my seeking refuge.’   

3. On 31 July 2001, an officer of the Minister’s department wrote to the appellant seeking further information in support of his claim, and providing information concerning the situation in Bangladesh upon which it invited the appellant to comment.  He was also invited to submit further information.  He did not provide any such information or comments.  Not surprisingly, his application was refused.  From this decision, he applied to the Refugee Review Tribunal for review.  He was invited to attend a hearing before the Tribunal but did not do so.  Again not surprisingly, his application was unsuccessful. 

4. He applied to a Federal Magistrate for review of the decision, complaining of the fact that he had not been recognised as a refugee, and asserting that the Tribunal had not considered the consequences of false charges brought against him by the then ruling Party and its supporting activists.  He also claimed that the Tribunal had not taken into account the previous history of targeting by “Awami hooligans”.  The difficulty which the appellant faced was that by this stage, the Awami Party was no longer in power.  It lost an election to the BNP on 1 October 2001, that is, after the departmental decision but before the Tribunal decision.  As his application had been predicated upon the Awami League being in power, the change in government undoubtedly seriously undermined his claim.  Part of his complaint may have been that he was not specifically asked to comment upon the significance of the change of government.  In any event, the magistrate declined to intervene.  This is an appeal from that decision.  Four grounds of appeal are raised in the notice of appeal.  The first three may be quickly dismissed.  They are:

   ‘1.I am aggrieved and disappointed by the dismissal decision of my review application by the Federal Magistrates Court Raphael FM even though I claimed I have serious  persecution due to my political involvement in Bangladesh and also very disappointed by the order to pay the cost $3250.00 dollars and therefore would like to challenge the decision. 

   2.The Tribunal rejected my claims in a conventional way without any sound basis. 

   3.The Tribunal cited only a part of so many reports and references in deciding my application instead of the whole reports and references.’

   Clearly, none of these three grounds constitutes a proper basis upon which the magistrate could have intervened or for a successful appeal against the magistrate’s decision. 

5. Ground 4 is as follows:

   ‘The Tribunal decision was not with any lawful effect rather it was infected by jurisdictional error.  Such as:

   (a)The Tribunal did not comply with the mandatory obligations that contained in section 424A of the migration act. 

   (b)The Tribunal did not ensure, as far as practicable, or at all, that I understood why all those references and information were relevant to my review application as required by section 424A(1)(b) of the migration act. 

   (c)The Tribunal did not give me the Particulars of the information or references in the manner required by section 424A(1)(a) and 424(2)(a) of the migration act.’ 

6. In my view, the grounds of appeal are bad for want of particularity.  Paragraph (a) does not identify any particular mandatory obligation with which it is alleged the Tribunal did not comply.  It seems that the appellant expects the Court to go through the whole of the proceedings and each aspect of s 424A to itself find any deficiency.  Similar comments apply to subpars 4(b) and 4(c).  There has been no attempt to identify any particular ground of criticism by reference to the way in which the proceedings were conducted or the outcome.  In any event, it is clear that the information upon which the Tribunal acted was information concerning circumstances in Bangladesh generally, rather than information concerning which the appellant might be expected to have any relevant comment.  It may have concerned all of the citizens of Bangladesh, or all of the citizens having a particular political view but, in my view, it must inevitably have fallen within the provisions of subs 424A(3). 

7. The real problem here has been the appellant’s failure to respond to inquiries made both by the Department and by the Tribunal, seeking further information and comments.  He has sought to justify his failure by blaming an immigration agent, but there is no evidence before me, nor was there any before the magistrate, which would justify such accusations.  In any event, even if it were possible to intervene on that basis, the appellant would have to explain his failure to respond to the departmental inquiry and to that of the Tribunal.  It also seems that no such assertion was made before the magistrate.  In the circumstances, the appeal must be dismissed. 

8. Incapacity to pay is not a basis which would justify me in not making an order for costs, or would lead me to decline to make an order.  I order that the appellant pay the respondent’s costs of the appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:            28 May 2004

Counsel for the Appellant:	The Appellant appeared in person.
Counsel for the Respondent:	Ms M Allars
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	22 April 2004
Date of Judgment:	22 April 2004