SZBDE v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 370

FEDERAL COURT OF AUSTRALIA

SZBDE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 370

SZBDE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 159 of 2005

TAMBERLIN J
SYDNEY
29 MARCH 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 159 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZBDE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	29 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the costs of the respondent.

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 159 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

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

JUDGE:	TAMBERLIN J
DATE:	29 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Driver (“the Federal Magistrate”) given on 20 January 2005.  The Federal Magistrate dismissed the application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) and ordered the appellant to pay the Minister's costs.  The decision of the Tribunal was made on 19 June 2003 and that decision was to affirm a decision by a delegate of the Minister not to grant a protection visa to the appellant.

   THE TRIBUNAL DECISION

2. The Tribunal was satisfied that the appellant is a citizen of Bangladesh.  The appellant claims to fear persecution from supporters and members of the Bangladesh National Party (“BNP”) and Jamaat I Islam Party (“JIL”) because of his political opinion and Awami League activities.  In support of his case, the appellant claims that he was attacked, and his property looted, by BNP supporters in February 2001 and that he fears he will be killed if he returns to Bangladesh.

3. The Tribunal said that it had considered the appellant's claims in his protection visa application and review application, together with his oral evidence, his adviser’s written submissions and documents lodged by the appellant in support of his claims.  I note that the appellant had an adviser present at the hearing before the Tribunal.

4. The Tribunal accepted that the appellant was a supporter and member of the Awami League, but it did not accept that the appellant was a prominent member, or an executive member, of the local Awami League and gave reasons for this conclusion.  On the hearing today, the appellant said that the reasons given by the Tribunal were wrong, however, this is a question of fact for the Tribunal and not for this court.

5. The appellant contended that he was attacked by BNP supporters who observed him passing by a political meeting.  The appellant further claimed that the police were not interested in the looting of his business or the attack on him that arose from the political meeting.  The Tribunal considered that it could not be said that the police had acted unreasonably, as the appellant did not complain to the police about the assault.

6. In addition to fearing for his life, the appellant claims that he fears for his family’s safety.  At the hearing, the Tribunal noted that the appellant did not make any specific claims of mistreatment of his family, although there were some general claims about family members being harassed.  The Tribunal noted that the appellant’s family had remained in their home and was not satisfied that they were at risk of harm from BNP supporters.

7. The Tribunal also considered the situation if the appellant returned to Bangladesh as an Awami League supporter and member.  After having regard to country information, the Tribunal concluded that the appellant's involvement in politics was of a low level and therefore would not cause mistreatment by members of the BNP or the present government of Bangladesh.

8. The Tribunal did not accept claims that the appellant had outstanding false charges against him in Bangladesh, that he faced arrest if he returned or that the police were not prepared to assist him in relation to the alleged looting or attack.

9. The Tribunal also considered that the appellant could relocate in Bangladesh and that such relocation would be reasonable.  In forming this view, the Tribunal had regard to the fact that the appellant was well‑travelled and had demonstrated resilience and flexibility in living in Australia.

   THE APPEAL

10. On the hearing today, the appellant referred to pages 49 to 74 of the appeal book and submitted that this material had been ignored by the Tribunal.  I note that this material was furnished by the appellant's adviser subsequent to the hearing before the Tribunal but before the decision.  There is nothing to indicate that the Tribunal member did not take this material into account. 

11. An examination of the material discloses that it is not specifically directed to the appellant or a class to which the appellant belongs and I do not consider that it has been demonstrated that there has been any failure to afford procedural fairness in the present case. 

12. The appellant further claimed that the decision maker was biased and did not act in good faith.  The basis for this submission appears to be that the decision was adverse to the appellant, but this is not sufficient to establish either bad faith or bias.  The appellant has referred to the tape of the hearing but has produced neither the tape nor any specific reference or summary of parts of it which could establish bias, lack of good faith or failure to afford procedural fairness.

13. In addition to the pages mentioned above, the appellant also referred to page 95 of the appeal book, where the Tribunal states that it had carefully examined the appellant's claims on the visa application and the other material before it but was not satisfied that the appellant was an executive member of the local Awami League or was prominent and successful as an Awami League figure in the local community or in any other part of Bangladesh.   There is nothing in the material to indicate that this conclusion was not open to the Tribunal and so this ground has not been made out and the reference does not advance the appellant’s case.

14. The decision of the Magistrate is based on detailed reasoning in relation to the matters raised before him.  This reasoning is set out in the Magistrate's Reasons for Judgment.  I am not persuaded that there is any error disclosed in these Reasons.

15. Accordingly, as no reviewable error of principle or law has been shown, I am not satisfied that any ground on which to uphold the appeal has been made out in relation to either the Magistrate's decision or the decision of the Tribunal. 

16. For these reasons, I dismiss the appeal with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            7 April 2005

The Appellant appeared in person with the assistance of an Interpreter.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	29 March 2005
Date of Judgment:	29 March 2005