SZBMC v Minister for Immigration
[2005] FMCA 944
•28 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBMC v MINISTER FOR IMMIGRATION | [2005] FMCA 944 |
| MIGRATION – Review of decision of RRT – where applicant has not particularised his claims – where Tribunal has made its decision on the basis of acceptance of many facts put by the applicant. |
| Federal Magistrates Court Rules 2001 |
| Applicant: | SZBMC |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG1942 of 2003 |
| Judgment of: | Raphael FM |
| Hearing date: | 28 June 2005 |
| Date of Last Submission: | 28 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 28 June 2005 |
REPRESENTATION
| For the Applicant: | In Person |
| Counsel for the Respondent: | Mr J Potts |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,250.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1942 of 2003
| SZBMC |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Bangladesh. He arrived in Australia on 1 September 2001. On 5 September 2001 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 18 December 2001 a delegate of the Minister refused to grant a protection visa and on 15 January 2002 the applicant applied for a review of that decision.
The applicant was represented by a migration agent. On 11 September 2002 the Tribunal wrote to the applicant informing him that it had considered the material before it in relation to his application but was unable to make a decision in his favour on that information alone. The Tribunal offered the applicant an opportunity to attend a hearing on 7 February 2003, that hearing was later moved to 13 March 2003. The applicant was not well on that date and the Tribunal moved the hearing to 2 April 2003. The migration agent asked the Tribunal to postpone the hearing. A postponement was granted until 22 April 2003 and took place on that day.
The applicant claimed to have a well-founded fear of persecution for the Convention reasons of political opinion as he was a member of the Bangladesh Nationalist Party. He also claimed to be a supporter of the feminist author Taslima Nasreen and a member of a performing group that was present at a performance in April 2001 at which a bomb was exploded by an alleged Muslim terrorist. The applicant claimed to be the victim of false charges which had been laid against him and which had gone to trial and resulted in a term of imprisonment of three years in his absence. He also claimed that in July 2001 he had been kidnapped and held for ransom overnight and later assaulted, he blamed the Awami League for this.
The Tribunal in its findings and reasons noted the similarity between the applicant's claims and that of two other applicants who had appeared before the Tribunal. It also noted significant variations between the claims originally made and those arising from the applicant's oral evidence at the hearing. It determined to treat his evidence with caution. Notwithstanding this it did accept that he had some continuing involvement with the BNP, that he was a member of a group performing traditional folk songs, that he was present and injured at the bomb attack at the New Year performance in 2001, and that he had been convicted of charges relating to an incident in May 2001 when he and others were alleged to have been engaged in rioting, looting, clashes with the police, arson and damage to public and private property. The Tribunal did not accept that there were two direct attempts on his life in 2001 by the Awami League because those claims did not appear to have been taken up at the Tribunal hearing and were identical to claims made by the other two applicants.
The Tribunal came to the conclusion that the alleged kidnapping was a criminal activity as opposed to a political one. This was a conclusion which the Tribunal was entitled to come to on the evidence before it. The Tribunal also noted that whatever the applicant's views may have been about the Awami League that political party was no longer in power and the Tribunal did not accept the unsupported assertions of the applicant that after the 2001 elections BNP activists were now more insecure or that Bangladesh is not really controlled by the BNP.
Although the Tribunal accepted with some degree of scepticism the evidence of the charges made against the applicant it did not consider that he was a refugee by virtue of that fact alone. The Tribunal pointed out that there was no claim or evidence that the charges resulted in excessive punishment amounting to persecution or that the charge itself violated accepted human rights standards. The Tribunal found that the court records submitted on behalf of the applicant did not reveal any evident injustice. It would appear that evidence was taken from some eight witnesses and that the applicant was at all times aware of the proceedings through his own advocate. The applicant had an opportunity to appeal the decision but he allowed the appeal period to pass without taking action through his Bangladesh lawyer.
The Tribunal also found, using independent country information, that support for the feminist writer Taslima Nasreen would not make the applicant of adverse interest to Muslim fundamentalists. Finally, the Tribunal, whilst accepting that the applicant may have been in the troupe which was performing at a concert at which a bomb exploded, was not prepared to find that the bomb was aimed at the applicant or performers of his ilk, or that the incident was likely to be repeated against the applicant personally. The Tribunal stated at [CB 179]:
“The Tribunal does not accept that the attack was targeting Bangladeshi artists in general or the applicant in particular (and none of the press reports consulted supported these contentions) or that he had been threatened or has been subsequently black-listed or targeted for this reason, or that the bomb-blast is indicative of a real chance of persecution of the applicant for a Convention reason or denial of reasonably available protection by the authorities.”
The applicant filed an application for review with this court on 22 September 2003. The form of the document would be familiar to any person dealing regularly with these matters and whilst the existence of an appeal in template form per se is not evidence of any lack of sincerity or realistic claim by an applicant, the court would expect some particularisation of serious claims such as one that the Tribunal made its decision in bad faith or that it denied the applicant natural justice. No such particulars were provided and before me today the applicant said that he was unable to make any representations because he had not yet seen the barrister appointed through the Minister's scheme, this appointment took place in December 2003. The applicant told me that the barrister had advised him that he had not received a green book from the Minister's solicitors. He, the applicant, therefore gave the barrister all his papers. When he telephoned the barrister recently he was informed that the barrister was away on holidays. I refused an adjournment on these grounds as it seemed to me that the applicant had had plenty of time in which to chase up his papers and to secure the services of the barrister, which were in any event a privilege not a right.
I am satisfied that the conclusions to which the Tribunal came are all conclusions supported by evidence readily available to it. I am satisfied that the applicant was given an opportunity to present his case and did so. The Tribunal made findings of fact in favour of the applicant and proceeded to consider his case on that basis. I am unable to see in what way the Tribunal failed to provide the applicant with procedural fairness. Nor am I able to identify from my reading of the green book any other jurisdictional error into which the Tribunal may have fallen. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM
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