SZAKL v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1257

FEDERAL COURT OF AUSTRALIA

SZAKL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1257

MIGRATION – appeal from a decision of a Federal Magistrate - dismissed

Judiciary Act 1903 (Cth)

SZAKL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 461 of 2004

HILL J
31 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 461 OF 2004

BETWEEN:	SZAKL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	31 AUGUST 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal from the decision of a Federal Magistrate be dismissed.
2. The appellant pay the costs of the respondent Minister.

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 461 OF 2004

BETWEEN:	SZAKL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	31 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 23 April 2003 the applicant applied to the Federal Magistrates Court for judicial review of a decision of the Refugee Review Tribunal refusing the grant to him of a protection visa.  The application was heard by a Federal Magistrate on 23 March 2004.  The application was dismissed with costs.  The applicant now appeals to this court in its appellant jurisdiction against a decision of the Federal Magistrate. 

2. The notice of appeal states that the Tribunal erred in law and failed to exercise the proper procedure.  It said also that the decision of the Magistrates Court was incorrect in that the Magistrate did not consider all the legal factors relevant to the protection visa application.  It is further alleged that the applicant was denied natural justice both by the Tribunal as well as by the Magistrate.  It is said that the court, which may mean the Magistrate or the Tribunal, did not consider the current hostile situation of the Freedom Party people in the Bangladeshi political arena. Further, it was alleged without any particularisation that the review application to the Tribunal, as well as in the Magistrates Court, was affected by prejudice and bias. 

3. Before me the applicant was unable to point to any matter constituting error on the part of the magistrate other than that the Magistrate had not given the right decision, that the Magistrate had not agreed with the applicant and that I should reconsider the decision presumably of the Tribunal, but perhaps also of the Magistrate. 

4. The applicant's claim before the Tribunal was that he was entitled to be considered a refugee within the meaning of the Convention because he had a well founded fear of being persecuted for reason of his political opinion, being a member of the Bangladesh Freedom Party.  He claimed to have joined that organisation as a member in 1991 and to have been seriously involved in its activities, including processions, demonstrations and meetings. He said that he had been blamed for the murder of an Awami League activist which had resulted in a false charge being brought against him and that there were a number of cases that had been filed against him.  He claimed that the Awami League and the police were both looking for him and that his life was threatened if he returned to Bangladesh.

5. As the learned Magistrate pointed out the Tribunal did not accept the applicant's evidence. He found that he was not a credible witness. It reached these conclusions based on a number of matters which are set out at length in the decision of the learned Magistrate. To succeed in judicial review before the Magistrate, having regard to the terms of section 39B of the Judiciary Act 1903 (Cth), it is necessary that the applicant to the Magistrate identify jurisdictional error.  It is not always easy to identify what constitutes jurisdictional error.  One thing is however clear and that is that a factual finding of the Tribunal based upon its assessment of credibility of an applicant having regard to matters before it and where the assessment of credibility was open to the Tribunal will not involve jurisdictional error.

6. As the Magistrate noted the Tribunal did consider the claim of the applicant that he was a member of the Freedom Party but rejected it.  That rejection carried with it a rejection of the various claims upon which the applicant asserted that he had a well founded fear of persecution on political grounds if returned to Bangladesh. 

7. Because the applicant was not represented before me I have read the decision of the Tribunal with some care.  I have also read the decision of the learned Magistrate. There is nothing that I can see in the Tribunal's decision which would indicate jurisdictional error, nor is there anything in the Magistrate's decision which would suggest that his Honour erred in law in dismissing the application.

8. No doubt a denial of natural justice by the Tribunal would constitute jurisdictional error as would a finding of actual bias. Both of these two matters are alleged in the notice of appeal.  They are however unparticularised and no attempt was made by the applicant to develop them when given the opportunity.  I should say that there is nothing that suggests either in the reasons for decision or otherwise that there has been any denial of natural justice nor is there anything which would suggest that either the Tribunal or the learned Magistrate were biased against the applicant.

9. I would accordingly dismiss the appeal and order the applicant before the Federal Magistrate's Court, i.e. the appellant before me today, to pay the respondent Minister's costs of the appeal. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill .

Associate:

Dated:             31 August 2004

Applicant appeared in person:
Counsel for the Respondent:	A J McInerney
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	31 August 2004
Date of Judgment:	31 August 2004