SZAVA v Minister for Immigration - [2004] FMCA 438

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAVA v MINISTER FOR IMMIGRATION

[2004] FMCA 438

MIGRATION – Review of RRT decision – where applicant claims to have a well-founded fear of persecution for convention reasons of political opinion, membership of a social class and religion – where applicant had travelled abroad on several occasions each time returning to country of nationality despite his fear of persecution – where Tribunal found some of the applicant’s claims were not credible – where Tribunal found that threats made did not constitute serious harm amounting to persecution – whether Tribunal failed to consider part of applicant’s claim – whether Tribunal acted in bad faith – whether findings and reasons of decision evidence denial of natural justice – whether applicant essentially seeking merits review.

MIMA v Jia [2001] 205 CLR 507
WAJS v MIMIA [2004] FCAFC 139
Abebe v The Commonwealth (1999) 197 CLR 510
Waterford v The Commonwealth (1987) 163 CLR 54

Applicant:

SZAVA

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1135 of 2003

Delivered on:

5 July 2004

Delivered at:

Sydney

Hearing date:

5 July 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in Person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1135 of 2003

SZAVA

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He arrived in Australia on

1 September 2001. On 5 September 2001 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 11 January 2002 a delegate of the Minister refused to grant a protection visa and on 11 February 2002 the applicant applied for a review of that decision. The Tribunal wrote to the applicant the usual letter advising him that it was unable to come to a positive decision in his case and invited him to a hearing. That hearing took place in the presence of the applicant's adviser on

7 April 2003. The Tribunal made its decision on 7 May 2003 and handed it down on 29 May 2003. The Tribunal affirmed the decision not to grant a protection visa.
The applicant claims to have a well-founded fear of persecution for the Convention reasons of political opinion, membership of a social class and religion. He told the Tribunal that in about 1987 he joined the Jataya Party and remained active within it until he departed Bangladesh for Australia in 2001. He claimed that he was a prominent member and a leader within his area. Because of this he had become a target of the Awami League, had suffered death threats and false charges being brought against him.
The applicant also advised the Tribunal, and the Tribunal accepted, that he was a performance artist who had been at the New Year's celebrations on 14 April 2001 when a bomb exploded. He told the Tribunal he had been injured in that incident. The applicant believed that members of his social group of artists were targeted by the Jemaah Islamiyah (JI) – a party that was in coalition with the ruling BNP. He had received threats from members of the JI and had been told to leave the country. He claimed that one of the false charges against him had resulted in a prosecution and conviction although no supporting evidence was brought about this. The applicant claimed that the JI was antithetical to artists and persons like himself who appeared on the television as they represented a secular element in society which that party was determined to stamp out.
Although the applicant had travelled to India, Nepal and Bahrain and on each occasion returned to Bangladesh he claimed that he was fearful now to return because of the activities of the JI and his past political opponents.
The Tribunal heard the applicant's evidence and viewed a series of video tapes, which satisfied it that he was indeed a performer as he claimed. However, the Tribunal did not accept his claims to have been a prominent member of the Jatiya Party such that he was the subject of the death threats or the victim of false charges.
The Tribunal noted that the applicant did not claim that the bomb had been directed at him personally and noted that the occasion was not a political rally. The Tribunal did not accept that the attack was either directed at the artists including the applicant or was anything other than a random attack by a person or persons unknown and not associated with the applicant's political opinion, religion, social group or for any other Convention reason. The Tribunal noted that the applicant had performed in public for some 17 years and no other acts of violence had been directed against him or other performers with whom he was appearing.
A claim is also made by the applicant that whilst in this country he had witnessed a stabbing incident in respect of which he was required to give a statement to the police. He told the Tribunal (and he had told the police) that he had lied in the course of that statement because of threats being made to him to injure his family in Bangladesh. The Tribunal dealt with that matter and concluded at [CB 381] that it was not relevant to his refugee claims. The Tribunal took the view that any threats that might have been made to him would not result in his being subjected to serious harm amounting to persecution for a Convention reason if he returned to Bangladesh.
The application to this court dated 23 June 2003 contained 10 grounds of which the tenth indicated he would provide more details later. The first ground suggested that the Tribunal did not take into account the conviction which he claimed had been registered against him in Bangladesh; that is incorrect. The Tribunal did take this matter into account and discussed it at some length. The Tribunal noted that the Bangladeshi courts at their higher level were independent from government and if the case had indeed resulted in a conviction the applicant had an opportunity to have that overturned.
The second ground of the application was that the Tribunal had made its decision in bad faith. No particulars as required by order 54B rule 2 of the Federal Court Rules have been provided and, therefore, the applicant has not been able to comply with the requirement set out by Gleeson CJ and Gummow J in MIMA v Jia [2001] 205 CLR 507 at 531:
“In order to make out a case of actual bias on a decision-maker's part, the person alleging bias must establish that, before a conclusion could properly be reached, the decision-maker had made up his or her mind and was incapable of being persuaded differently.”
This comment applies equally to paragraph 6 of the applicant's grounds.
The applicant claimed that he had been deprived of natural justice. No particulars were provided as to this claim but a reading of the court book would tend to indicate that the Tribunal very thoroughly considered all points made by the applicant and gave him every opportunity to comment upon them. The Tribunal did refuse to allow the applicant some further time to provide particulars of his convictions but it noted that he had already had almost two years to do that and had not done so.
Three of the applicant's further grounds refer to matters of fact. As the full bench said in WAJS v MIMIA [2004] FCAFC 139 at [17]:
“Determination of the facts of the case was the responsibility of the Tribunal member. Whatever our personal views may have been and we have not reached any conclusion about them, it cannot be said that the Tribunal member's view was perverse or illogical.”
This court cannot interfere with fact-finding matters unless they indicate some other jurisdictional error: Abebe v The Commonwealth (1999) 197 CLR 510; Waterford v The Commonwealth (1987) 163 CLR 54.
The applicant also relied upon a 25 page document, which he told me had been prepared for him by a friend. It contains an outline of submissions and a substantial quotation from a United States Department of Country Report on Human Rights Practices for 2002 released in March 2003. The problem with this document is that it is not only unspecific as to the applicant's claims but would appear from a quotation on page 8, not even to be prepared for the applicant. It argues on that page:
“As to the first argument the applicant may contend that the information concerning the prevalence of documents drawn in Bangladesh, referred to at page 408 and 409 of the court book is not "just about a class of persons of which the applicant or other person is a member".”
There is no page 408 and 409 of the court book in this case and the applicant did not stand accused of document fraud. Indeed, the absence of documents was one of the reasons why the Tribunal was unable to be satisfied that the charges alleged against him would cause him any concern.
Before me today the applicant relied on the written submissions provided by his "friend". He asked me to send the case back to the Tribunal to look at it again and offered to relocate into the Australian countryside should the government wish it. He claimed that he could not return to Bangladesh because the situation was not safe. None of these submissions assisted me in the search for jurisdictional error in the decision making of the Tribunal.
In all the circumstances I am unable to see any grounds upon which a review can be granted in this case. I must dismiss the application, which I do. I order that the applicant pay the respondent's costs which I assess in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 13 July 2004