SZBDM v Minister for Immigration
[2005] FMCA 60
•1 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBDM v MINISTER FOR IMMIGRATION | [2005] FMCA 60 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – no reviewable error found – application dismissed. |
Migration Act 1958 (Cth), s.424A
| Applicant: | SZBDM |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG1567 of 2003 |
| Delivered on: | 1 February 2005 |
| Delivered at: | Sydney |
| Hearing date: | 1 February 2005 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr S Lloyd |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1567 of 2003
| SZBDM |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 17 June 2003 and handed down on 11 July 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from Bangladesh and claimed a protection visa on the basis of asserted political persecution. Relevant background facts relevant to his arrival in Australia, his claims and the RRT examination of them are set out in Mr Lloyd's written submissions. I agree with and adopt by way of background paragraphs 2-7 of those written submissions:
The applicant, a citizen of Bangladesh, arrived in Australia on 19 December 2001.[1]
[1]court book, pages 88.1, 104.3
He lodged an application for a protection visa on 8 January 2002.[2]
[2]court book, pages 1-39
A delegate refused the application on 22 March 2003.[3]
[3]court book, pages 48-57
On 17 April 2002, the applicant lodged an application for review with the RRT.[4]
[4]court book, pages 58-61
The applicant gave evidence to the RRT on 19 May 2003.[5]
[5]court book, page79
On 11 June 2003, the RRT handed down its decision affirming the decision under review. The RRT made the following findings:
a)It accepted that the applicant was a supporter and member of the Chattra League and the Awami League and that he may have helped the party in election campaigns.[6]
b)The RRT found that the applicant was not a high profile member or prominent person within the party.[7] It did not accept that he had the level of involvement in a range of activities that he had claimed, given his inability to provide any real detail about his claims.[8]
c)It did not accept that leaders of the BNP or Jamaat I Islam are searching for him or have lodged false cases against him.[9] In any case, it considered that the applicant could obtain effective protection from the prosecution of false charges from the higher Bangladeshi courts.[10]
d)The RRT did not accept the applicant’s claim that his home was ransacked after he left Bangladesh. The RRT noted that the applicant had not claimed to have suffered any other harm from his political opponents.[11]
e)The RRT was not satisfied that the applicant would be mistreated by members of the BNP of by the present Government of Bangladesh.[12] The RRT said that it had no evidence that persons with a profile such as the applicant were targeted.
f)The RRT said that if the applicant did not wish to return to his place of former residence in Bangladesh, in order to avoid his political opponents, he could relocate within Bangladesh and it would be reasonable for him to do so.[13]
g)The RRT considered that if the applicant returned to Bangladesh and resumed his political activities he faced less than a remote chance of being persecuted for reasons of his political opinion.[14]
h)In relation to the applicant’s claim to fear harm from a criminal figure, the RRT found that any such harm was not feared for a Convention reason and, in any event, the applicant was in a position to acquire state protection.[15]
i)The RRT found that the applicant was not a person to whom Australia had protection obligations under the Convention.
[6]court book, page105.3
[7]court book, page105.7
[8]court book, page105.8
[9]court book, page106.1
[10]court book, page106.4
[11]court book, page106.7
[12]court book, page107.9
[13]court book, page108.3
[14]court book, page108.5
[15]court book, pages 108.9-109.3
These proceedings commenced with the application filed in this Court on 8 August 2003. The application contains nine grounds plus a promise to provide more details later. The grounds advanced are identical to grounds advanced in many applications before the Court. No particulars were given. In the absence of particulars the grounds lack substance.
The applicant attended a directions hearing before Registrar Kavallaris on 16 October 2003. The applicant consented to orders which gave him the opportunity to file and serve an amended application and evidence by 22 January 2004. The applicant did not take up that opportunity. The only evidence I have before me is the book of relevant documents filed on behalf of the Minister. The applicant served written submissions by fax on the solicitors for the Minister on Sunday last. He told me this morning that he had also sent them to the Court but they have not yet reached me. Ms Crawley provided me with a copy through Mr Lloyd which I have read before commencing the hearing this morning.
The written submissions are also formulaic in content and follow very closely the form of written submissions presented in many earlier cases. The submissions are a jumble of legal assertions. To the extent that they descend to any detail relevant to these RRT proceedings, they identify matters that are merely relevant to a dispute over the merits of the RRT decision. The submissions purport to concentrate on assertions of actual bias and bad faith. There is no substance whatsoever to those assertions.
The submissions also obliquely assert a breach of the rules of natural justice and also assert a breach of s.424A of the Migration Act 1958 (Cth). On my reading of the book of relevant documents, there was no breach of either s.424A or the rules of procedural fairness under the general law. The material commonly known as country information that was relied upon by the presiding member was also relied upon by the delegate and would have come as no surprise to the applicant. It appears from the decision and reasons of the RRT that the presiding member gave thorough consideration to the applicant's claims and discussed them with him.
The applicant told me from the bar table this morning that he has more documents which he hopes to obtain from Bangladesh. These documents apparently relate to his claim made to the RRT that he feared harm at the hands of a criminal figure in Bangladesh. That claim was considered by the presiding member who found that there was no Convention nexus with the harm feared. The applicant believes that the documents he is expecting to receive will establish a political connection. Whether that is correct or not cannot be assessed until the documents arrive. These were documents that were not before the RRT. They would not assist me in resolving the question of whether there was any jurisdictional error in the decision of the RRT.
For completeness, I agree with and adopt for the purposes of this judgment paragraphs 8-12 of Mr Lloyd's written submissions:
The application contains 9 enumerated grounds but no particulars.
Grounds 2, 6 and 9 allege bias or bad faith. There is no basis for such grounds to be raised here. There is an utter lack of evidence to support these claims.
Ground 1 alleges that the RRT failed to take into account a court case against him in Bangladesh. This is wrong. It had regard to the claim and rejected it. It found in any event that the applicant could achieve protection from any false case from the higher courts in Bangladesh.
Ground 3 asserts a denial of procedural fairness. No specific allegation has been made. This ground must be rejected.
Grounds 4, 5, 7 and 8 are directed to the merits of the RRT’s decision. In one way or another, the applicant says that the RRT erred in not accepting his evidence. This was a matter for the RRT. It does not reveal jurisdictional error.
There is no jurisdictional error in the decision of the RRT. It follows that the decision is a privative clause decision and the application for judicial review must be dismissed.
The application having been dismissed, costs should follow the event. Mr Lloyd sought a costs order in the normal range which in a case of this complexity I regard as in the range of $3,000 to $4,000. In my view, costs of $3,500 would have been properly and reasonably incurred on behalf of the Minister. The applicant asked me how I thought he would pay for the costs that might be awarded. As I pointed out to him, that is a matter for discussion between him and the Minister's department or her legal advisers. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,500.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 3 February 2005
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