SZAUZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1561

FEDERAL COURT OF AUSTRALIA

SZAUZ v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1561

SZAUZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1457 of 2004

SACKVILLE J
SYDNEY
1 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1457 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZAUZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND INDIGENOUS AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	1 DECEMBER 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	NSD 1457 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZAUZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND INDIGENOUS AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	SACKVILLE J
DATE:	1 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this appeal, the appellant complains that the Magistrate erred in rejecting contentions that the Refugee Review Tribunal (‘RRT’) failed to accord the appellant procedural fairness. The complaint is made in the face of the following findings by the Magistrate ([2004] FMCA 655):

   (i)The appellant, who arrived in Australia from Bangladesh in February 2000 on a student visa, applied for a protection visa in February 2001.  The application was lodged by a migration agent on his behalf.  The covering letter indicated that the appellant wished to collect material from overseas and requested four to six weeks to forward the material to the Department.  The form of application contained some general assertions about the appellant’s fear of persecution in Bangladesh, but no supporting material at all.

   (ii)Despite the request, no further material was forwarded to the Department, either by the appellant or his migration agent.  The delegate of the respondent (‘the Minister’) proceeded to determine the application on 1 May 2001.  Not surprisingly, the determination was adverse to the appellant.

   (iii)The appellant sought review in the RRT, again using the services of a migration agent.  No supporting material was attached to the application to the RRT, but a notation requested the RRT to take into account ‘my next statement and submission from my adviser’.  Once again, no material was forwarded at any time to the RRT. 

   (iv)On 21 March 2003, the RRT wrote to the appellant, with a copy to his migration agent, advising that it was unable to make a decision in the appellant’s favour on the basis of the material provided by him.  The letter invited the appellant to a hearing of the RRT to give oral evidence and present arguments in support of his claims.

   (v)In response to the invitation, the appellant indicated that he wished to attend a hearing.  He indicated that an interpreter was not needed and that he was not requesting the RRT to take oral evidence from witnesses. 

   (vi)The appellant did not attend the hearing.  The RRT, in its reasons handed down on 4 June 2003, noted that no explanation for the appellant’s absence had been provided, either directly or through the appellant’s adviser.  The RRT indicated that it had decided to proceed to a decision on the papers and it did so.

   (vii)The RRT summarised the effect of the appellant’s unparticularised claims as asserting that he had ‘an inseparable association’ with ‘communist alliance and involvement and contribution to the workers party of Bangladesh’ and that he was afraid of ‘the current Awami administration and their terrorist associates’.

   (viii)Not surprisingly, the RRT observed that the appellant had made only sketchy claims and had failed to add the necessary details in support of each claim.  The RRT said it could find no evidence on which it could be satisfied that the appellant had affiliations with the communist, socialist or workers’ movements in Bangladesh.  It did not accept his vague and unsupported assertions about his political career and political problems.  The RRT pointed out that the appellant had shown no interest in expanding upon the vague claims, let alone speaking of the changes in political circumstances that had occurred in Bangladesh since he first applied for a protection visa.  Moreover, the RRT noted that the appellant had been able to leave Bangladesh unhindered, suggesting that he faced no problems, let alone relevant problems, with the authorities in that country.  The RRT concluded that the appellant was not sincere in his protection visa application and it was not satisfied that he faced a real chance of Convention related persecution in Bangladesh.

   (ix)The Magistrate noted that the application for review filed in the Magistrates Court gave no particulars of the grounds of review.  However, the appellant apparently complained that the RRT had not followed correct procedures and it was this that had caused him not to appear at the hearing.

2. The appellant’s explanation to the Magistrate (apparently given from the bar table) was that he had not received ‘written questions’ from the RRT.  The Magistrate stated that he could not understand how the appellant could possibly believe from the invitation sent to him that this was to be the procedure followed by the RRT.  The letter clearly indicated that he was being given one opportunity to elaborate his case and that, in order to do so, he would need to attend on the specified occasion.  The invitation had also drawn his attention to the RRT’s entitlement to make a decision without taking further action if the appellant did not attend the hearing.

3. The Magistrate concluded that the RRT had done nothing that amounted to a denial of procedural fairness.  Nor had it failed to follow the procedure set out in the Migration Act 1958 (Cth), which it was required to observe.

4. The other points raised by the appellant simply amounted to complaints about factual matters or did not give rise to any possible jurisdictional error.  For that reason, the Magistrate dismissed the application.

5. The notice of appeal does not identify with any particularity any error of law said to have been committed by the Magistrate.  The appellant has filed written submissions.  These submissions assert that the appellant was not given an opportunity to comment on any adverse information that might have been available to the RRT.  The submissions suggest that the RRT could have put adverse information to him in order for him to answer its concerns prior to the hearing.

6. There is no obligation on the part of the RRT to proceed in the manner suggested by the appellant.  He was given ample notice of the proposed hearing before the RRT.  He could have attended in order to put his case.  He chose not to.  As the Magistrate observed, it is difficult to understand how the appellant could have believed that the RRT was to proceed by way of submitting written questions to him.  This is not a case where the appellant is unable to understand plain English.

7. In his oral submissions today the appellant repeated his unconvincing explanation for not appearing before the Tribunal.  He also claimed that events have changed in Bangladesh and the changed circumstances have given rise to a well-founded fear of persecution on his part on political grounds.  However, this is a matter that if relevant at all, goes only to the merits of the RRT’s decision.

8. There is no merit whatsoever to this appeal.  The appeal must be dismissed, with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             2 December 2004

The Appellant appeared in person.
Counsel for the Respondent:	A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 December 2004
Date of Judgment:	1 December 2004