SZBEI v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 895

FEDERAL COURT OF AUSTRALIA

SZBEI v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 895

Migration Act1958 (Cth) s 424A(3)(a)

Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264

SZBEI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 429 OF 2005

HELY J
16 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 429 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBEI APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	16 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with 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 429 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBEI APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	16 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the decision of Federal Magistrate Mowbray dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) affirming a decision of the Minister’s delegate not to grant a protection visa to the appellant.  By direction of the Chief Justice the appeal is to be heard and determined by a single judge. 

2. The appellant is a citizen of Bangladesh who claimed to fear persecution in Bangladesh by reason of his political opinion.  The appellant’s claims centred upon his alleged high level political involvement with the Awami League and its student wing, the Chattra League.  In particular the appellant claimed that false cases had been lodged against him by the Bangladeshi National Party (‘the BNP’) in 1998 and that he was thereafter in hiding, moving around Bangladesh until he left Bangladesh for Qatar in 2001.

3. The RRT’s principal findings can be briefly summarised as follows.  First, that the appellant was not an Awami League activist nor was he an office bearer of the Chattra League as he claimed.  Second, the appellant left Bangladesh legally in 1998 without the BNP having lodged false cases against him as he had claimed.  Third, that the appellant was not even in Bangladesh between 1998 and 2001, hence the RRT was not satisfied that the appellant went into hiding or was threatened by BNP supporters between those dates.  Fourth, that while the appellant and his family were supporters of the Awami League the independent country information was to the effect that low level Awami League supporters such as the appellant are not at risk of violence on that account.  The Awami League operates legally and openly in Bangladesh.  It has a significant following and has been represented in all parliaments since the resumption of democracy in 1991.  Fifth, if, contrary to the RRT’s basic findings, the appellant was at risk of persecution at the place of his former residence, he could relocate to another part of Bangladesh where he would not be exposed to such a risk. 

4. Before Mowbray FM the appellant relied upon five grounds of review, each of which was considered and rejected.  The reasons for rejecting each of the grounds of review appear in Mowbray FM’s decision and there would be no useful purpose served by my repeating them here.  Suffice it to say that I have read Mowbray FM’s decision, and the reasons which his Honour gives for rejecting the five grounds of review appear to me to be soundly based.

5. The Amended Notice of Appeal filed in this Court raises four grounds of appeal.  Ground one is that ‘[T]he Honourable court failed to determine whether there was any jurisdictional error in the purported decision of the Tribunal’.  Ground two is that ‘[T]he decision of the refugee review tribunal is not a valid decision, as it did not have the power to affirm the decision that was under review’.  Particulars of each of these grounds are appended but they do not assist in the elucidation of the ground.  It seems to me that grounds one and two do not disclose any error on the part of Mowbray FM or jurisdictional error on the part of the RRT.  Mowbray FM found that the RRT made no legal error going to jurisdiction in coming to its decision and his Honour’s conclusion in that respect is not shown to be wrong nor is it directly impeached by grounds one and two. 

6. The appellant has not filed any submissions in support of his appeal.  When the matter was called on for hearing this morning the appellant told me that he did not wish to say anything in support of his appeal.  I sought to gain some clarification of the point that he wished to make by grounds one and two, but this attempt on my part was unsuccessful, as all that he was able to tell me was that he did not receive a letter from the Department of Immigration & Multicultural & Indigenous Affairs within the 28 day period he had to apply for a review of the decision of the Minister’s delegate.

7. Ground three of the Amended Notice of Appeal is that ‘[T]he delegate of the Minister failed to notify the applicant according to law’.  This ground does not relate to the decision of the RRT but to that of the Minister’s delegate and it is unclear what this ground is intended to convey.  Again the appellant was unable to expand upon this ground beyond repeating what he had earlier said about the lack of notification within the 28 day period.

8. Ground four is that ‘[T]he Tribunal failed to comply with the s 424A of the Act’. The particulars of that ground are that the RRT failed to invite the appellant to contest the information which was a reason or formed part of the reason to affirm the decision under review. The appellant confirmed this morning that the information to which he is referring in this ground is country information as to the present situation in Bangladesh.

9. The Federal Magistrate found that to the extent to which the RRT relied upon country information the information fell within s 424A(3)(a) of the Migration Act1958 (Cth) (‘the Act’) and as such was not required to be the subject of written notification to the appellant: see Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264. No error has been shown in this conclusion.

10. The appeal must be dismissed as there is no substance in any of the grounds of appeal, nor has anything else been put to me which goes anywhere near showing that Mowbray FM committed an error in the decision to which he came, or that the RRT was guilty of any legal error going to its jurisdiction.

11. The appeal is dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             27 June 2005

The appellant appeared in person
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	16 June 2005
Date of Judgment:	16 June 2005