SZAVA v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1263

FEDERAL COURT OF AUSTRALIA

SZAVA v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1263

SZAVA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1125 of 2004

SACKVILLE J
SYDNEY

30 SEPTEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1125 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAVA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	30 SEPTEMBER 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 1125 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	SACKVILLE J
DATE:	30 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘RRT’) affirming a decision of the delegate of the respondent (‘Minister’) to refuse to grant the appellant a protection visa: [2004] FMCA 438.

2. The appellant is a citizen of Bangladesh, who arrived in Australia on 1 September 2001.  He lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs on 5 September 2001.  On 11 January 2002, a delegate of the Minister refused to grant a protection visa.  On 11 February 2002, the appellant applied to the RRT for review of the delegate’s decision.  The RRT held a hearing on 7 April 2003 in the presence of the appellant’s adviser.  The RRT’s decision, made on 7 May 2003, was handed down on 29 May 2003.

3. The appellant claimed that he had held office in the Jatiya Party and had participated in political rallies and demonstrations.  He said that he was threatened by political opponents within the Awami League and that he had been attacked at an open air concert on 14 April 2001.  He had been injured at that time in consequence of a bomb blast, which took place during Bengali New Year celebrations. 

4. The appellant, who was 35 at the time of the RRT hearing, said that he was a well known performance artist in Bangladesh and that he had been performing at the time of the bomb explosion.  He claimed that artists as a social group had been targeted by the Jemaah Islamiyah (‘JI’), a party that was in coalition with the ruling BNP.  He said that JI opposed secular artists and was determined to stamp them out.

5. The RRT accepted that the appellant was a well known entertainer in Bangladesh and that he had been appointed to the post of Cultural Secretary of a District Committee of the Jatiya Party.  However, while accepting that the appellant had been an entertainer at some Jatiya Party functions, the RRT did not accept that he was an influential leader of the Jatiya Party or that he had been deeply involved in Jatiya Party politics.  Nor did the RRT accept that the appellant’s political enemies had persecuted him.

6. The RRT accepted that the appellant had been present at the outdoor celebration on 14 April 2001, when an explosion occurred.  However, the RRT found that the explosion was nothing other than a random attack by unknown persons and was not in any way associated with the appellant’s political opinion, his religion, his membership of a social group or any other Convention reason.  The RRT also found that there was no real chance that the appellant would experience serious harm amounting to persecution if he returned to Bangladesh now or in the foreseeable future.

7. The RRT also found that the appellant had embellished his claims, in order to enhance his chances of obtaining a protection visa.  The RRT rejected certain claims made by the appellant long after he lodged his initial protection visa application.  These included a claim that false cases had been filed against him.  Indeed, the RRT found that the appellant himself did not claim to know details of the charges against him.

8. The appellant appeared unrepresented before the Magistrate.  His application contained 10 grounds, none of which was supported by any particulars.  The appellant also relied upon a 25 page document which was said to have been prepared by a friend.  As the Magistrate observed, this document did not appear to relate specifically to the appellant’s case.

9. The Magistrate noted that some of the appellant’s grounds related to matters of fact.  His Honour pointed out that the Court had no power to interfere with factual questions unless they indicated some other jurisdictional error.  His Honour was unable to identify any grounds upon which judicial review could be granted.

10. The appellant was again unrepresented on the appeal.  He filed no written submissions.  However, in court he handed up a documented headed ‘Written Argument by Applicant’.

11. This document does not appear to relate specifically to the circumstances of the appeal.  The document merely makes some general claims, such as assertions that the RRT had ‘ignored the merits of the claim’ and had not acted ‘in good faith’.

12. In his oral submissions, the appellant sought to reagitate a number of factual questions in respect of which the RRT made adverse findings.  None of these is capable of constituting jurisdictional error.

13. The decision of the RRT was based upon its assessment of the appellant’s credibility and the objective circumstances which indicated that there was no real chance that he would suffer persecution in Bangladesh for a Convention reason. It is not the function of a court exercising powers of judicial review of RRT decisions to engage in a reassessment of the merits of the decision. No error has been shown in the Magistrate’s conclusion that the RRT’s decision was not affected by any jurisdictional error that would justify the grant of relief under s 39B(1) of the Judiciary Act 1903 (Cth).

14. The appeal must be dismissed, with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:             30 September 2004

The appellant appeared in person.
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	28 September 2004
Date of Judgment:	30 September 2004