SZAJS v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1061

FEDERAL COURT OF AUSTRALIA

SZAJS v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1061

SZAJS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N273 OF 2004

EMMETT J
6 MAY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N273 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAJS APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	6 MAY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed. 

2.        The appellant pay the respondent’s costs.

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	N273 OF 2004

ON APPEAL FORM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAJS APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	6 MAY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. When this appeal was called on for hearing today there was no appearance for the appellant.  The respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), therefore invited the Court to hear the appeal.  I am satisfied that the appellant should be aware that the proceeding was listed for hearing today.  On 27 April 2004 and on 4 May 2004 the Minister’s solicitors wrote to the appellant referring to the hearing date.

2. The appellant claims to be a citizen of Bangladesh.  He arrived in Australia on 26 April 2001 and, on 2 May 2001, he lodged an application for a Protection Class XA Visa under the Migration Act 1958 (Cth) (‘the Act’). On 10 May 2001 a delegate of the Minister refused to grant a protection visa and, on 6 June 2001, the appellant applied for a review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 19 March 2003 the Tribunal affirmed the decision not to grant a protection visa.

3. The appellant then applied to the Federal Magistrates Court for prerogative writ relief in respect of the decision.  On 12 February 2004 Federal Magistrate Driver ordered that the application be dismissed and ordered the appellant to pay the Minister’s costs and disbursements on the proceeding on an indemnity basis.  By notice of appeal filed on 2 March 2004 the appellant then appealed to this Court.  On 4 May 2004 the Chief Justice determined, pursuant to s 25(1A) of the Federal Court of Australia Act 1975 (Cth) that the matter be heard by a single judge.

4. In its reasons for its decision of 19 March 2003 the Tribunal stated that careful consideration had been given to the claims and evidence of the appellant but that the Tribunal did not accept as true his claims of having been a long-term member and supporter of the Bangladesh Freedom Party since 1991.  The Tribunal considered that the appellant’s claims were fabricated and that he was not a credible witness.  The Tribunal set out the reasons that led it to that conclusion as follows:

   ‘that the appellant knew virtually nothing about the Freedom Party, other than the names of its prominent leaders.  He did not know when it was formed and did not give the correct name of its newspaper.  He did not know that it had a youth wing.  He was unable to answer correctly that it had fielded a candidate in his electoral district in the June 1996 elections and had no idea of which districts it had contested.  The appellant could not give the Tribunal any detail about what he did for the party, other than to give vague answers about “doing politics” and inspiring people about the party.’

5. The Tribunal considered that on the material available to it a person with the claimed history and profile asserted by the appellant could be expected to have known the matters that were discussed with the appellant.  The Tribunal considered that the fact that he knew virtually nothing indicates that his claims of association with and membership of the Freedom Party were fabricated.  The Tribunal, therefore, concluded that the appellant does not have a well-founded fear of persecution for reasons of a Convention ground.

6. The Magistrate found no jurisdictional error on the part of the Tribunal in reaching that conclusion.  His Honour set out his reasons for his own conclusion.  By the notice of appeal to this Court the appellant asserts as follows:

   ‘(a)The honourable Federal Magistrate failed to find that the tribunal exceeded its jurisdiction, in failing to accord the applicants procedural fairness, as required under section 424A(1) of the Migration Act 1958.

   (b)The honourable Federal Magistrate failed to find that the tribunal did not provide the applicant with particulars of information to the applicant, in the Australian embassy reports, or any other adverse materials, which formed part of the reason of the tribunal’s decision...’

   The notice of appeal asserts therefore, that the Tribunal made an error of law and made its decision in circumstances that involved procedure unfairness and denial of natural justice.  There is no evidence from the appellant that could possibly support any of the assertions made in the notice of appeal. 

7. In the application to the Federal Magistrates Court dated 17 April 2003 the appellant asserted that there were errors of law based upon procedural unfairness.  However, no particulars were provided.  The Magistrate records in his reasons that, in the course of oral submissions, the appellant claimed that the presiding member of the Tribunal had already made up his mind before the Tribunal hearing because he made his decision immediately after the hearing.  The appellant also asserted before the Magistrate that he was concerned that the presiding member had only asked him questions about his personal circumstances and knowledge of the Freedom Party, and not more generally about the risk he may face in Bangladesh.  There is no substance in the matters that were put to the Magistrate and the Magistrate reached a demonstrably correct conclusion for the reasons that his Honour gave.  In my view, the appeal should be dismissed.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            16 August 2004

The Appellant did not appear.
Counsel for the Respondent:	S. Kaur-Bains
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	6 May 2004
Date of Judgment:	6 May 2004