SZARK v Minister for Immigration

[2004] FMCA 465

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZARK v MINISTER FOR IMMIGRATION [2004] FMCA 465

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Bangladesh by reason of his homosexuality – decision of the RRT a privative clause decision – judicial review application filed out of time – objection to competency upheld.

Migration Act 1958 (Cth), s.477

Appellant S395 v Minister for Immigration (2003) 78 ALJR 180
SZARI v Minister for Immigration [2004] FMCA 464

Applicant: SZARK

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFAFIRS

File No: SZ951 of 2003

Delivered on: 23 July 2004

Delivered at: Sydney

Hearing date: 23 July 2004

Judgment of: Driver FM

REPRESENTATION

The applicant appeared in person

Solicitors for the Respondent: Mr M Allatt
Australian Government Solicitor

ORDERS

1. The application is dismissed as incompetent.

2. The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ951 of 2003

SZARK

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 19 July 2002 and handed down on 13 August 2002.  The decision was notified to the applicant by letter dated 13 August 2002.  The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.  The applicant is from Bangladesh and applied for a protection visa on the basis that he was at risk of being persecuted because of his homosexuality.

2. Apart from the bald claim in the protection visa application, nothing was put before the delegate to support the visa application and it was duly rejected.  Nothing further was put before the RRT that would enable the RRT to change the decision of the delegate.  The matter is very simply put by the presiding member on page 58 of the court book.  He says:

   The applicant has made generalised claims about persecution for reasons of his homosexuality.  However despite repeated undertakings to do so, he has failed to provide any evidence or details to substantiate this claim.  Whilst I accept that homosexuality is unlawful per se in Bangladesh, there is no evidence before me of prosecution of persons for homosexual conduct, indeed quite the reverse.  In the absence of evidence from the applicant as to his past experiences in Bangladesh or to the specific nature of the harm which he fears and from whom, I cannot be satisfied that he has a well-founded fear of persecution for a Convention reason.

3. There was nothing before the RRT, just as there was nothing before the delegate, that could realistically support a favourable outcome for the applicant. 

4. The application for judicial review filed on 28 May 2003 is in virtually identical terms to the application in the matter of SZARI v Minister for Immigration [2004] FMCA 464 that I dealt with this morning. The applicant asserts a lack of procedural fairness and that there was no evidence or other material to justify the making of the decision. There is also a generalised allegation of an error of law. No particulars were provided. The application came before a registrar of this Court on 17 July 2003. The applicant was ordered to file and serve any affidavit on which he intended to rely and any amended application on or before 11 September 2003. He chose not to do so. The applicant has filed today extensive written submissions. Those submissions seek to draw support from the decision of the High Court in Appellant S395 v Minister for Immigration (2003) 78 ALJR 180. However, the decision of the High Court in that case cannot assist the applicant because there is simply nothing in the RRT decision that is open to attack on the basis of the High Court's decision. The applicant failed because he did not put anything before the RRT that could support a decision favourable to him.

5. I note that the applicant did not attend the RRT hearing. He told me that he did not receive the letter inviting him to attend and put blame on his then migration adviser for failing to submit material on his behalf.  The applicant may have been poorly served by his migration adviser but that is the fault of the migration adviser, not the RRT. 

6. There is no jurisdictional error in the decision of the RRT.  It follows that the decision is a privative clause decision.

7. Because the decision is a privative clause decision s.477(1A) of the Migration Act 1958 (Cth) applies. That section prescribes a 28 day time limit upon the bringing of applications for judicial review of decisions of the RRT. This application was filed many months outside that time limit. It follows that the objection to competency must be upheld and that the application must be dismissed as incompetent. I will make those orders.

8. The application, having been dismissed as incompetent, costs should follow the event.  Mr Allatt estimates that some $3,000 has been incurred in costs on behalf of the Minister on a party party basis.  I consider that an award fixed in the sum of $2,000 would be appropriate.  The applicant has referred to his impecuniosity but that is not a reason for me to refrain from making a costs order.  I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $2,000.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  11 August 2004