SZAHN v Minister for Immigration
[2003] FMCA 494
•27 October 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAHN v MINISTER FOR IMMIGRATION | [2003] FMCA 494 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – no reviewable error found. |
Judiciary Act 1903 (Cth), s.39B
| Applicant: | SZAHN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ437 of 2003 |
| Delivered on: | 27 October 2003 |
| Delivered at: | Sydney |
| Hearing date: | 27 October 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
The applicant is to pay the hearing fee of $327 within 14 days or obtain a waiver.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ437 of 2003
| SZAHN |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Tribunal (“the RRT”) made on 6 March 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and made claims of political persecution in Bangladesh, those claims were rejected by the RRT. The general background and the description of the proceedings before the RRT are set out in Mr Lloyd's written submissions filed on 23 October 2003. I adopt paragraphs 1 through to 7 of those written submissions for the purposes of this judgment:
This is an application for judicial review pursuant to s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). The application concerns a decision of the RRT made on 6 March 2003 to affirm a decision of a delegate of the Minister to refuse the applicant a protection visa.
In brief, the applicant claimed to have been involved in student politics on behalf of the student wing of the Bangladesh National Party (BNP) from 1994 until April 2001. He claimed that he was blamed for a murder which he said occurred either in July/August 2000 (first claim) or late 1999/early 2000 (claim at hearing). He claimed that he had been involved as a victim in various violent clashes from student supporters of the Awami League. He claimed that he was forced to leave Bangladesh to avoid the police and Awami League supporters who blamed him for the murder.
The RRT did not believe that the applicant even had a subjective fear of harm. That, in itself, was enough to support the RRT’s decision.
In addition, it did not accept his claim to have been blamed for a murder and to fear persecution related to that blame. This, too, amounted to a rejection of the applicant’s critical ground for a protection visa.
The RRT accepted that the applicant had been involved in student politics, including violent political clashes. It did not, however, accept the applicant’s claims that he was only passive in these exchanges. It considered that, if contrary to its main finding, the applicant had been blamed for a murder, it could be because there was a real case to be answered. In such a case, the RRT concluded that the applicant would have protection through independent court processes.
The RRT also made finding in the alternative to the effect that, if the applicant was wanted, he was wanted only in the Bhola District where he had grown up and that he could find effective protection elsewhere in Bangladesh (as he in fact had done, on his own evidence, before his departure from Bangladesh). Hence, this internal flight principle provided a further answer to the applicant’s claims.
The RRT made other findings adverse to the applicant’s claims but given the above findings they are not material.
In his application filed on 25 March 2003 and his supporting affidavit filed on the same day, the applicant sets out various grounds of review. Those grounds are, however, vague in their terms and do not on their face give cause for any particular legal concern about the RRT decision. When I invited the applicant to put oral submissions to me he told me he wanted someone to look at the RRT decision more carefully. I accept that, however as I explained to the applicant, in order to provide relief to him, I need to identify jurisdictional error.
The matters put before me by the applicant and my own examination of the court book do not establish jurisdictional error. I find that there is none. In the circumstances the decision of the RRT is a privative clause decision. I must therefore dismiss the application and I do so.
The applicant having been unsuccessful in these proceedings and the Minister successful, Mr Lloyd properly seeks an order for costs and it is appropriate that I make one. Mr Lloyd informs me that approximately $6,000 has been incurred on behalf of the Minister in this matter. While the legal issues in this matter are quite simple, a significant amount of documentary preparation has been required. In addition, notwithstanding the apparent lack of substance in the application, it was appropriate in my view for the Minister to be represented by counsel today as a precaution.
The applicant tells me that he has a lack of funds but that is not a reason for me to refrain from making a costs order or for reducing it below the level that would otherwise be appropriate. On a party/party basis an order for costs fixed in the sum of $4,000 is appropriate and I will so order.
There is one other matter. I am told by my associate that the hearing fee required to be paid in this matter has not been paid. The amount required is $327. I will in addition, I order that the applicant pay the hearing fee required to be paid in this matter of $327 or obtain a waiver within 14 days.
I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 13 November 2003
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