SZBOB v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 845

FEDERAL COURT OF AUSTRALIA

SZBOB v Minister for Immigration & Multicultural & Indigenous Affairs  [2005] FCA 845

MIGRATION – appeal dismissed

SZBOB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 585 OF 2005

HILL J
7 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 585 OF 2005

BETWEEN:	SZBOB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	7 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs of the appeal.

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	N 585 OF 2005

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

JUDGE:	HILL J
DATE:	7 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex tempore – revised)

HILL J:

1. The appellant appeals against the decision of a Federal Magistrate dismissing his application for judicial review of a decision of the Refugee Review Tribunal.

2. The appellant is a national of Bangladesh.  Shortly after arriving in Australia he applied for a protection visa.  It is a condition of the grant of such a visa that the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) be satisfied that the applicant is a person to whom Australia has protection obligations.  Generally speaking, it can be said that Australia has protection obligations to a person who is a refugee as defined in article 1A(2) of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together, "the Convention").

3. Article 1A(2) of the Convention defines a refugee as any person who:

   “Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4. A delegate of the respondent Minister rejected the appellant's application for a protection visa.  The appellant then applied to the Refugee Review Tribunal to review the delegate's decision.  The Tribunal affirmed the decision of the delegate.  The appellant then sought judicial review of that decision in the Federal Magistrates Court.  The appellant's claim was summarised by the Tribunal as follows:

   “In his original claim and in the submissions supporting it, the applicant stated that, because of his family poverty he started school late.  There he became/was active in the Bangladeshi National Party and was elected as president of the school branch of the BNP Student Wing in 1992.  He continued to hold party office and in 1996 was elected president of the local branch of his party.  At the end of his term in 1998 he joined the executive committee where he remained until Bangladesh.  He led many demonstrations against the government.  On a number of occasions, he was attacked by Awami League activists.  Many of his friends were detained with false charges made against them.  To obtain a better election result charges were laid against him by the League too, and as a result he fled the country.”

5. What the appellant now fears, from his oral evidence, is persecution from the locally powerful Jamaat-i-Islami, a fundamentalist Muslim party with which his own party, the Bangladesh National Party (“BNP”), is in coalition.  That party has considerable influence locally and is unlikely to be hindered in its pursuit of him by the local BNP.  Because of his opposition to the ideas of Jamaat, he has always been in disfavour with them.

6. His independent and "pro-liberationist" views have also led to opposition to him from the "anti-liberalists" faction in his own party, the BNP.  That faction is preventing the striking out of the false charges laid against him by the Awami League.  A warrant has been issued for his arrest and is still current.  If he is required to return to Bangladesh he fears arrest, detention, torture, imprisonment and possibly death.

7. The Tribunal noted that these original claims related to fears of the Awami League but that the appellant's claim had changed following elections that took place in Bangladesh so that his fear now related to fear of the Jamaat-i-Islami anti-liberationist enemies in the BNP.  The Tribunal accepted that the appellant was a member of the secularist faction and that feelings between factions might be strong with violence occasionally resulting.  It noted that there was no evidence of direct harm or threats to the appellant in Bangladesh as a result of his factional affiliations or his independent policy stances, nor was there any evidence of such harm occurring to any other person in his branch or in his city.  

8. The Tribunal was not satisfied that he had a well-founded fear of harm from his party factionalist opponents.  Having regard to independent country information, the Tribunal was also not satisfied that the appellant had a rational reason to fear action against him from Jamaat-i-Islami.  It was of the view also that it would be a reasonable option for the appellant to relocate in Bangladesh, as these fears were essentially local.

9. As to the matter of the charges outstanding against him, the Tribunal made no finding as to whether these were genuine.  It formed the view, however, that if they were, the appellant should have no real fear of their being pursued against him. 

10. The Tribunal noted that it was common practice for such charges to be struck out or not progressed and that a very high percentage of the charges were dismissed.  It noted also that had the appellant really been of interest to the authorities, he would have had difficulty departing Bangladesh.  In fact, apparently, it had no such difficulty.  This supported, so the Tribunal said, its conclusion that the authorities were not pursuing the charges against the appellant.  When the application for judicial review came before the Magistrate, the appellant sought an adjournment for two weeks.

11. He did so because he wished to provide new information relating to the situation in Bangladesh.  The Magistrate noted that the appellant said that he had only collected half of the documents he wished to prepare and collate.  The learned Magistrate refused the adjournment.  He did so because the information the appellant wished to put before him was factual information which would not be of any assistance in determining whether the Tribunal had made a jurisdictional error.  The appellant did not otherwise make any submissions to the Magistrate.

12. Nevertheless, the Magistrate, in his reasons, considered the various matters which had been raised in the application for judicial review and concluded from that and also his own reading of the Tribunal's reasons that there was no jurisdictional error on the part of the Tribunal.  It followed that the application for judicial review had to be dismissed.  Before me, the appellant produced a written argument.  He submitted that the Magistrate had effectively denied him procedural fairness by failing to grant the two-week adjournment.

13. The submission notes that the Magistrate had made his decision on the basis of the documents before him and, at least by implication, without regard to the documents that the appellant otherwise would have produced to him.  The submission goes so far as to suggest that the learned Magistrate was guilty of bias.  I should say that there is absolutely nothing in the reasons of the Magistrate to suggest that his Honour approached the matter with a closed mind.  The rest of the written submissions canvass factual matters which goes to the merits of the case.

14. In oral submissions, the appellant submitted that the information which the Tribunal had gathered and relied upon came from sources that were unreliable.  He submitted that the Tribunal took information from CNN and other media sources, which information was "not correct for Bangladesh".

15. He said that the Tribunal had not listened to him but had rather made its decision based on the unreliable information it had obtained.  He said that the Tribunal's decision was not fair to him.  Although he had showed many paper cuttings to the Tribunal relating to members of the army torturing people in Bangladesh, the Tribunal had taken no note of them.  The appellant also pointed out that he suffered from language problems in putting submissions to me although it seemed to me that his English was quite good and in any event, he had the assistance of an interpreter.  He asked if he could have further time in which to make submissions or perhaps obtain legal representation or advice.

16. The short summary of the matters raised with me by the appellant indicates the obvious difficulty he and any non-lawyer, non-English speaking person has in making submissions on questions involving jurisdictional error.  It is probably not surprising that he has difficulty in understanding that this Court cannot enter into the merits of his case but rather is considering whether the learned Magistrate erred in his decision, a question which in turn relates back to whether there was jurisdictional error on the part of the Tribunal.

17. I have carefully considered both the decision of the learned Magistrate and the reasons of the Tribunal.  I am unable to detect any jurisdictional error on the part of the Tribunal nor do I think that the Magistrate's decision reveals any error on his part.  In particular, the learned Magistrate did not deny to the appellant procedural fairness by refusing to him the adjournment.  This is so because the adjournment was sought to enable the appellant to put before the Magistrate material which was irrelevant to the matter before the learned Magistrate.  That material went to the merits of the appellant's case, not whether the Tribunal had made any jurisdictional error.  I would accordingly dismiss the appeal.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:            20 June 2005

Counsel for the Applicant:	The appellant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 June 2005
Date of Judgment:	7 June 2005