SZBCU v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 346

FEDERAL COURT OF AUSTRALIA

SZBCU v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 346

SZBCU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 111 of 2005

SACKVILLE J
SYDNEY
5 APRIL 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 111 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBCU APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	5 APRIL 2005
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 111 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	SACKVILLE J
DATE:	5 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court handed down on 10 January 2005: SZBCU v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 29. The learned Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘RRT’) handed down on 9 July 2003. The RRT had affirmed a decision of a delegate of the respondent (‘the Minister’) not to grant the appellant a protection (class XA) visa.

2. The appellant is a citizen of Bangladesh.  He left that country legally on or about 7 November 1998 and arrived in Australia on or about 31 July 1999.

3. The appellant lodged an application for a protection visa on 1 September 1999.  He made what were described by the RRT as ‘only very vague claims’ in that application, but promised a detailed statement and supporting documents, none of which was forthcoming.  The application was rejected by a delegate on 1 October 1999 and that decision was affirmed by the RRT in a decision handed down on 2 May 2002.

4. The appellant again applied for a protection visa on 24 May 2002, apparently on the basis that his previous application was invalid as it did not contain any specific claims as to why Australia owed him protection obligations.  Be that as it may, the second application was accepted by the delegate as valid.  However, the delegate refused to grant a protection visa and, as already noted, that refusal was affirmed by the RRT.

5. The appellant’s claims, as recorded in a statutory declaration, were that he feared persecution in Bangladesh by reason of his support of the Muslim League and of a political party, the BNP.  His support for these political parties was said to have prompted the Awami League to look for him in order to kill him.  In particular, according to the statutory declaration, a group of Awami League supporters went to the appellant’s home in November 1998 looking for him.  When they were unable to find him, they tortured his children and destroyed his business premises.  These events led him to leave the country in order to save his life.

6. On 20 June 2002, the delegate wrote to the appellant setting out a number of matters that the delegate said might lead him to reject the application.  These matters concerned independent country information relating to Bangladesh that cast doubt upon the appellant’s claims.  Apparently no response was made to this letter. 

7. Following the delegate’s decision, the RRT wrote to the appellant on 16 April 2003 advising him that it was unable to make a decision in his favour on the basis of the material he had supplied.  The letter invited the appellant to attend the hearing and to give oral evidence and present arguments in support of his claims.  The hearing was scheduled for 12 June 2003.  The appellant was advised that if he did not attend the hearing and an adjournment was not granted, the RRT might proceed to make a decision on his case without further notice.

8. On 24 April 2003, the appellant advised the RRT that he would attend the hearing. However, he did not do so. Nor did he contact the RRT to explain his failure to attend. In these circumstances, the RRT decided to proceed pursuant to s 426A(1) of the Migration Act 1958 (Cth) (‘Migration Act’) to make its decision without taking any further action to enable the appellant to appear before it.

9. Although the appellant did not appear before it, the RRT gave detailed reasons for rejecting the appellant’s application for review of the decision to refuse him a protection visa.  The findings made by the RRT include the following:

   • the appellant did not present detailed claims until March 2002, some two and a half years after lodging his first protection visa application;
   • the appellant failed to present any documents to support his claim or to provide the material he promised in August 2002, despite having several opportunities to do so;
   • as a result of the appellant’s inaction in supporting his claim and his failure to attend the hearing, the RRT could not be satisfied that his claims had any truth to them;
   • the appellant was indifferent to the fate of his claims and the reason for that indifference was that he had exaggerated or fabricated his claims;
   • the appellant’s claimed political affiliations changed so often that it was difficult to believe that any party would put faith in his claimed allegiance;
   • the appellant admitted that he had been away serving as a seaman for nine months every year over a fifteen year period and had never played an active part in Bangladeshi politics;
   • if the appellant had been involved with the BNP or any other political party, his involvement never went further than being an ordinary member of the party; and
   • the appellant had left Bangladesh legally and without difficulty under documents in his own name, indicating that he was not in fear of detection and that he was not wanted by the authorities in Bangladesh.

10. In these circumstances, taking account of the fact that the appellant had done virtually nothing to support his visa protection application, the RRT was unable to be satisfied that the appellant had a well-founded fear of persecution.  It therefore concluded that he was not a person to whom Australia had protection obligations under the Convention relating to the status of Refugees.

11. The appellant appeared at the hearing in the Magistrates Court.  The Magistrate observed that although the appellant claimed that he had been sick at the time of the RRT hearing, no evidence to that effect had been adduced and no such claim had been made to the RRT.

12. The Magistrate recounted the approach taken by the RRT.  His Honour noted that the appellant had prepared a submission of some 25 pages, but the document was a ‘hotch potch of extracts from various decisions of the courts … and some comment upon them which [is] familiar to those who deal with matters of this nature in these courts’.

13. His Honour rejected the various complaints made by the appellant as being without any substance.  These included a claim that the case was similar to that of Muin v Refugee Review Tribunal (2002) 190 ALR 601. The Magistrate pointed out that there was no evidence of the factual matters which formed the basis of the agreed statement of facts in Muin.  Thus the case could not be of assistance to him.

14. Accordingly, the Magistrate considered that no jurisdictional error had been established and that the application had to be dismissed.

15. The notice of appeal originally filed in this Court was in a standard form and is not adapted to the particular circumstances of the case.  It sought to invoke Muin on the appellant’s behalf.

16. An amended notice of appeal was filed by the appellant.  The first four grounds are identical to grounds in the original notice of appeal.  Two of the remaining grounds complain about factual findings, while the third alleges a breach of the Migration Act by reason of what is said to have been the RRT’s failure to disclose country information to the appellant.

17. The appellant filed written submissions just before the hearing.  These are in a familiar form and are not specifically directed to his particular circumstances.

18. As the Magistrate held, the appellant’s reliance on Muin is misplaced.  He adduced no evidence of the matters that are necessary for the case to be governed by the principles articulated in that case.

19. To the extent that the appellant complains about adverse factual findings, these complaints cannot establish an error of law, let alone a jurisdictional error.  If the RRT did make any errors of fact (a proposition which has not been made out), they could fairly be attributed to the appellant’s failure to appear before the RRT.

20. To the extent that the appellant relies upon what are said to be breaches of procedural fairness, no such breach has been established. So far as the evidence before the Magistrate is concerned, the appellant received due notice of the RRT hearing but simply failed to attend. The RRT itself did not provide the appellant with details of the country information upon which it relied (in part) in rejecting the appellant’s claims. However, it did not need to do so, having regard to the terms of s 424A(3) of the Migration Act: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264.

21. The appeal must be dismissed, with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:            5 April 2005

The appellant appeared in person.
Counsel for the Respondent:	C Mantziaris
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	4 April 2005
Date of Judgment:	5 April 2005