SZAIU v Minister for Immigration
[2003] FMCA 506
•12 November 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAIU v MINISTER FOR IMMIGRATION | [2003] FMCA 506 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – application claiming political persecution in Bangladesh – no reviewable error found. |
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.483A
| Applicant: | SZAIU |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ525 of 2003 |
| Delivered on: | 12 November 2003 |
| Delivered at: | Sydney |
| Hearing date: | 12 November 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Sparke Helmore |
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 $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ525 of 2003
| SZAIU |
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 Review Tribunal (“the RRT”) made on 24 February 2002 and handed down on 14 March 2003. The RRT affirmed the decision of a delegate of the Minister not to grant to the applicant a protection visa. The applicant claimed political persecution in Bangladesh. The background to the application before me is set out in Mr Lloyd's written submissions in paragraphs 1 through to paragraph 8. Mr Lloyd deals accurately with the background to the matter before the RRT and I adopt those paragraphs for the purposes of this judgment:
The applicant seeks judicial review under s.39B of the Judiciary Act 1903 (Cth) and s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) of a decision of the RRT handed down on 14 March 2003. In that decision, the RRT affirmed a decision of a delegate not to grant the applicant a protection visa.
The applicant applied for a protection visa (relevantly) in November 2000, claiming to be a supporter of the BNP and to have been harmed by supporters of the Awami League and the police in the past and to face false charges.
The RRT invited the applicant to a hearing to be held on 24 February 2003. The invitation addressed to the applicant’s home address was returned to sender. However, the applicant’s adviser accepted the invitation on 14 February 2003.
Nonetheless, the applicant did not attend the hearing nor contact the RRT to explain his failure to attend.
The RRT affirmed the delegate’s decision on several alternative bases. First, it was not prepared to accept the mere assertions contained in the applicant’s application without support from his own oral evidence or otherwise.
Secondly, the RRT did not accept that the applicant had a subjective fear of persecution.
Thirdly, the RRT found that the applicant would be able to relocate within Bangladesh.
Finally, the RRT said that even if it were wrong about the truth of the applicant’s core claims, it considered that he would be able to access state protection in Bangladesh because the senior judiciary are independent and his party is now in Government.
The application filed in this Court on 8 April 2003 does not provide a proper basis for judicial review. That is because, apart from making very broad statements, the application does not identify any jurisdictional error. However, the applicant did appear before me this afternoon and presented written and oral submissions in which he raises two issues. The first issue concerns a statement by the presiding member on page 15 of the decision (court book, page 81). The presiding Member stated as follows:
In his November 2000 DIMIA application the applicant claimed that he was involved in the BNP or its student wing from 1993, was appointed to party positions in 1996 and 1998, was targeted by Awami League supporters and police, was implicated in one or more false cases, and left Bangladesh three times in order to save his life. In February 2003 he claimed that there might even be a threat to him from the BNP government. However, all claims remain nothing more than mere assertions because the applicant did nothing at any stage to provide support or evidence for the claims despite several opportunities to do so and despite his earlier promise to do so.
The applicant is concerned, in particular, with the last sentence. He submits that the sentence indicates an incorrect approach by the presiding member because decision makers under the Migration Act need to take into account the difficulty of asylum seekers in obtaining documentary evidence to support their claims.
I do not accept that the sentence in issue indicates an incorrect approach by the RRT. The presiding member was simply making a statement which reflected the facts of the situation. The applicant had made general claims but had not developed them. He had not provided information to the RRT to substantiate his claims. The presiding member observed (court book, page 80) that the applicant had had at least five opportunities to present his case. Despite an invitation to attend a hearing before the RRT, the applicant did not attend a hearing. In the circumstances, it is hardly surprising that the presiding member found little in the applicant's claims to support a favourable decision.
I find no legal error in the statement made by the presiding member.
The second matter of concern raised by the applicant relates to a statement made by the presiding member on page 18 of the decision (court book, page 84). The relevant paragraph begins at the bottom of page 83 of the court book. The presiding member stated:
The first is the change of government in October 2001, which leads me to conclude that, if any cases against him are false, his party, the now-ruling BNP, would help him in resolving those cases in a manner favourable to him.
This statement relates to the applicant's claim of false legal cases against him and is not presently material. The presiding member went on:
I attach no importance to his claim in para 9A about a potential danger to the applicant from the BNP because (a) it is simply the unconvincing claim which the applicant's current adviser uses in the case of BNP applicants who applied when the Awami League was in power and (b) the applicant has given me no reason to suppose that there is any reason why he would not be regarded favourably by his BNP colleagues.
The applicant is concerned about the unfavourable characterisation of his claim as one of a class of claims commonly made by a particular migration agent in relation to the change of government in Bangladesh. It is conceivable that the statement might be characterised as indicating pre-judgment, therefore indicating bias.
Decision makers under the Migration Act need be careful to avoid the temptation of drawing adverse conclusions from claims which are similar to earlier claims. The mere fact that people from particular countries make similar claims does not necessarily mean that the claims are false. The similarity of claims may simply reflect circumstances in particular countries at particular times. However, in my view, the statement of concern to the applicant does not indicate pre-judgement or otherwise indicate an error of law. The presiding member found the claim unconvincing and noted that the particular migration agent had made similar claims. The presiding member went on to consider the claim on its merits. It does not appear to me that the presiding member dismissed the claim simply because it had been made on behalf of other applicants.
I find no error in law of the decision of the RRT. The proceedings conducted by the RRT were fair. No jurisdictional error was committed by the RRT. Accordingly, I must dismiss the application.
I will order that the application be dismissed and that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 17 November 2003
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