SZAMI v Minister for Immigration
[2004] FMCA 269
•6 April 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAMI v MINISTER FOR IMMIGRATION | [2004] FMCA 269 |
| MIGRATION – Application for review of decision of Refugee Review Tribunal – No jurisdictional error. |
| Applicant: | SZAMI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ711 of 2003 |
| Delivered on: | 6 April 2004 |
| Delivered at: | Sydney |
| Hearing date: | 6 April 2004 |
| Judgment of: | Barnes FM |
REPRESENTATION
| Counsel for the Applicant: | Nil |
| Solicitors for the Applicant: | Nil |
| Counsel for the Respondent: | Nil |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
That the application is dismissed.
That the applicant pay the respondent's costs set in the amount of $2,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ711 of 2003
| SZAMI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application for review of a decision made by the Refugee Review Tribunal (the Tribunal) handed down on 8 April 2003 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa.
The applicant, who claims to be a citizen of Bangladesh, arrived in Australia on 20 February 1999 on a student visa. He applied for a protection visa on 4 June 2001. He claimed to fear persecution as a result of claimed political activities and his profile as a member of the student wing of the Jatiya Party in Bangladesh. He made these claims in a statutory declaration accompanying his protection visa application. He claimed to fear adverse attention from the Awami League and the Bangladesh Nationalist Party, that he had been attacked twice by supporters of these parties and that members of the parties had arranged that he be implicated in a local murder case. His application was refused by a delegate of the respondent on 30 August 2001. In his application for review to the Tribunal made on 19 September 2001 he indicated that he would provide a submission as soon as possible. He did not do so.
On 4 February 2003, the Tribunal wrote to the applicant indicating that it had considered the material before it in relation to his application but was unable to make a decision in his favour on the information alone and inviting him to a hearing which was to take place on 13 March 2003. On 13 March 2003 (the day of the hearing) the Tribunal received a faxed and signed response to the hearing invitation from the applicant’s adviser. In that response the applicant indicated that he wished to attend the hearing and requested a Bengali interpreter.
However the Tribunal's reasons for decision and the documents before the court record that the applicant did not attend the hearing on 13 March 2003 and did not contact the Tribunal to explain his failure to attend. The applicant was represented by a migration agent at this time. In those circumstances the Tribunal proceeded to make a decision on the papers before it in accordance with section 426A(1) of the Migration Act 1958.
The Tribunal outlined the applicant's claims and independent evidence in relation to the present situation in Bangladesh and then indicated that it had concerns or problems with a number of the applicant's claims. The applicant claimed that he was active with the Jatiya Party during college, but his application did not suggest that he had been politically active since that time. In those circumstances, it was unclear to the Tribunal why the Awami League (AL) Government would re-agitate old false charges against him as claimed. Further while the applicant claimed he feared arrest once the AL was in government he had continued to visit Bangladesh during this period. It was unclear why he was not arrested. The Tribunal observed in relation to the claims that the BNP was after the applicant, that he had also asserted that the BNP had not been interested in pursuing charges against him while it was in government from 1992 to 1996. It was not clear to the Tribunal why the BNP would have been pursuing the applicant after they lost government if they were not interested in pursuing him while they were in government. Finally, the Tribunal found that the independent evidence did not suggest that Jatiya Party members or supporters were at risk of persecution from the BNP, which was at that time in power in Bangladesh.
The Tribunal was unable to make findings of fact in relation to the applicant’s claims because of such problems. It was unable to reach the requisite level of satisfaction, required by section 65 of the Migration Act 1958, that the applicant was active with the Jatiya Party, that he was attacked, that he was charged with any offences or that he had even been of adverse interest to the Bangladeshi authorities or to anyone else in Bangladesh. In those circumstances the Tribunal concluded that it could not be satisfied that the applicant had a well founded fear of persecution for a Convention reason.
The application for review filed on 1 May 2003 relies on two grounds: that the Tribunal did not consider the evidence according to law and that it did not follow the proper procedures. These grounds are not particularised. No written submissions have been filed by the applicant and in his oral submissions he did not address the particulars of his claims but rather took issue with the merits of the Tribunal's decision. Merits review is not available in the Court.
No jurisdictional error is evident from the materials or the Tribunal's decision. The Tribunal properly complied with its obligation to invite the applicant to attend a hearing in accordance with section 425 of the Migration Act. It was open to it, in accordance with section 426(A) to proceed to make a decision on the papers in the absence of any attendance or explanation for non-attendance by the applicant. There is nothing in the material before me to support the applicant's claim that the Tribunal did not follow the proper procedures according to law. Moreover, the Tribunal did consider the applicant's claims as set out in the material before it in that respect, that being the statutory declaration provided in connection with his protection visa application.
The Tribunal properly considered the claims, indicated the difficulties that it had and the reasons that it was unable to be satisfied that the applicant had a well founded fear of persecution for a Convention reason. No jurisdictional error is apparent in the manner in which it dealt with the applicant's claims or in the procedures that it adopted. Accordingly, the application must be dismissed. I will hear submissions in relation to costs.
RECORDED : NOT TRANSCRIBED
The applicant has been unsuccessful. The respondent seeks that he meet costs in the sum of $2,300. The applicant claims to be in financial hardship. Financial hardship of itself is not a reason for not ordering costs, although it may be a matter taken into account by the Minister in determining how and when costs are recovered.
The applicant has been wholly unsuccessful and it is appropriate that he bear the respondent's costs and I consider that costs should be set in accordance with the Federal Magistrates Court Rules and that an appropriate amount, bearing in mind the nature of this and other similar matters, is the sum of $2,000.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Barnes FM
Associate:
Date: 6 April 2004
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