SZAIV v Minister for Immigration - [2004] FMCA 29

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAIV v MINISTER FOR IMMIGRATION

[2004] FMCA 29

MIGRATION – Review of RRT decision – where applicant returned to country of nationality several times after he ‘fled’ – where tribunal did not accept that applicant maintained a subjective fear of persecution – where applicant essentially seeking merits review – where applicant paid someone to prepare Outline of Submissions – where applicant did not understand content of that document.

Applicant:

SZAIV

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 526 of 2003

Delivered on:

16 January 2004

Delivered at:

Sydney

Hearing date:

16 January 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Ms V Hartstein

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay respondent’s costs in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 526 of 2003

SZAIV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He arrived in Australia on 12 December 2000. On 17 January 2000, he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 29 March 2001 a delegate of the Minister refused to grant a protection visa and on 22 April 2001, the applicant applied for review of that decision from the Refugee Review Tribunal. On 22 November 2002 the Tribunal wrote to the applicant advising it that it could not make a favourable decision based upon the information provided alone and set 20 December 2002 for a hearing.
The applicant was represented by a migration agent. The hearing in fact took place on 3 February 2003. The Tribunal made its decision to affirm the decision of the delegate on 28 February 2003 and handed that decision down on 21 March. The applicant claimed to have a well founded fear of persecution for the convention reason of political opinion. He informed the Tribunal and before it, the delegate, that in about 1988 he joined the Jatiya Party. He claimed that he had risen through its ranks and very soon had been elected as the Secretary of the Party in the Nangalkot Branch.
He stated that he organised political meetings in his local area but then he moved to Dhaka where he continued his political activity. The applicant claimed that he was the subject of extortion demands for political donations by both the BNP and the Awami League. He also states that at some time after 1990, he was accused of a political murder. In this regard he stated that he was found guilty and two of his colleagues who were also found guilty were sent to gaol for life. He, apparently, managed to escape and took shelter in one of his relatives houses in Dhaka.
The applicant claimed that on 27 January 1991 he was found by some Awami League supporters who attacked him. He was stabbed and required to be hospitalised. He still bears the scars on his forehead, left ear, shoulder, right hand and right knee. The applicant claimed that after this incident it was no longer safe for him to remain in Bangladesh and he took the opportunity to go and work in Kuwait. He remained in Kuwait from 1991 to 2000. During his time in Kuwait the applicant travelled. He went to other countries within the Middle East and on to Saudia Arabia.
He also returned to Bangladesh on three occasions, these being in 1993, 1997 and 2000. He stayed in Bangladesh on those occasions for considerable periods. In 1993 he had got married. The 2000 visit was at the end of his contract.
The gravamen of the Tribunal's decision can be found between CB [231] and [232]. At CB [231] the Tribunal said:
“ I find the actions of the applicant in returning to and staying in Bangladesh for three substantial periods in 1993, 1997 and 2000 during which time he was aware that he had been charged and found guilty of the very serious crime of murder, an attempt had been made to kill him and that he had left Bangladesh because he was in an imminent life threatening situation, to be inconsistent with a person holding a subjective fear of persecution. Further, I find the applicant's actions in returning to Bangladesh in 1997 and 2000 which postdated the time (1996) from which he was being sought for arrest under the "draconian" Special Power Act 1974, and a "systematic reign of terror" had begun in Bangladesh, to be inconsistent with a person holding a subjective fear of persecution.”
At CB [232] the Tribunal says:
“ Furthermore, while out of Bangladesh for a period approaching 10 years, the applicant had the opportunity to seek asylum elsewhere but did not do so and on three occasions he chose to return to Bangladesh. Accordingly, I find the applicant delayed seeking protection and that his actions were inconsistent with a person who had a subjective fear of persecution in Bangladesh.

I find that the applicant does not hold a subjective fear of persecution in Bangladesh. Therefore, I am not satisfied on the evidence before me that the applicant has a well founded fear of persecution for any Convention related reason.”
The applicant seeks relief from this court by way of an application filed on 8 April 2003. The grounds of the application are:
1.RRT’s decision was affected by an error of law and lack of procedural fairness as well as denial of natural justice issue.
2.There was no evidence or other material to justify in making of the decision.
On 12 January 2004 there was provided to the court a document entitled Applicant's Outline of Submissions. I do not propose to go through this document because I questioned the applicant about it. The applicant told me that he had paid someone to prepare it. He was unable to speak to the document which is in a form that might be familiar to persons who have conducted proceedings in this court and in the Federal Courts.
The document makes reference to the cases of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] 190 ALR 60 and then a series of other cases including Walton v Philip Ruddock, The Minister for Immigration & Multicultural Affairs [2001] FCA 1839, Craig v South Australia (1995) 184 CLR 163, Abebe v Commonwealth of Australia (1999) 197 CLR 510 and other publications and cases. The applicant informed me that he had no understanding whatsoever of these cases. The applicant did state that he could not produce any documentation relating to his injuries for political reasons. He told me that he still had the scars which had been referred to in the Tribunal's decision. He asked for a trial by another Tribunal officer.
As Ms Hartstein pointed out in her excellent written submissions and in her address to me the question of the applicant's scars was considered by the Tribunal CB [226]. In the paragraph at CB [231] which I have quoted from above, it would appear to have accepted that he was attacked and threatened. What the Tribunal did not accept was that the applicant maintained a subjective fear of persecution. That is a matter which is within the Tribunal's terms of reference. The Tribunal has set out the evidentiary basis upon which it came to that conclusion. It has not been denied by the applicant that he returned three times to Bangladesh and in those circumstances the court would be descending into the arena of a merits review if it came to a different conclusion itself.
No grounds have been put forward which can in any way indicate that the Tribunal made any jurisdictional errors in the manner in which it came to its conclusions in this case. In those circumstances I can only dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: