SZBPZ v Minister for Immigration - [2005] FMCA 1126

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBPZ v MINISTER FOR IMMIGRATION

[2005] FMCA 1126

MIGRATION – Review of decision of RRT – where applicant did not attend hearing – whether there was any jurisdictional error in the Tribunal decision – call for guidance by Full Bench on use of template submissions not written by and not understood by applicants.

Migration Act 1958, ss.422B, 424A , 426A, 422B
Federal Magistrates Court Rules

SAAP & Anor v Minister for Immigration [2004] HCA 285
NAMW v Minister for Immigration [2004] FCAFC 264
MZWBW v Minister for Immigration [2005] FCAFC 94
WAGP v Minister for Immigration [2002] 124 FCR 276

Applicant:

SZBPZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2141 of 2003

Judgment of:

Raphael FM

Hearing date:

1 August 2005

Date of Last Submission:

1 August 2005

Delivered at:

Sydney

Delivered on:

1 August 2005

REPRESENTATION

For the Applicant:

In Person

Counsel for the Respondent:

Mr R Bromwich

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $4,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2141 of 2003

SZBPZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant is a citizen of Bangladesh. He arrived in Australia on 9 October 2002. On 21 November 2002 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 11 February 2003 a delegate of the Minister refused to grant a protection visa and on 4 March 2003 the applicant applied for review of that decision. On 17 July 2002 the Tribunal wrote to the applicant advising 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 invited the applicant to a hearing on 25 August 2003.
On 11 August 2003 the Tribunal received from the applicant a response to hearing invitation faxed on the same day advising the Tribunal that the applicant would attend. The applicant also sent to the Tribunal some documents. These included originals and translations of certain Magistrates Court proceedings in Bangladesh apparently brought against the applicant and others.
The applicant did not attend the hearing or contact the Tribunal to explain his failure to attend. In these circumstances pursuant to s.426A of the Migration Act 1958 (the “Act”) the Tribunal made a decision on the review without taking any further action to enable the applicant to appear before it. On 26 August 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed that decision down on 23 September 2003.
The applicant's claim to have a well-founded fear of persecution for the Convention reason of political opinion was based upon his association with the Chattra League which is the student wing of the Awami League. The applicant claimed that he was an organiser of the party in his local area and a well-respected member. He claimed that attacks had been made upon him in 1995 and 1996 by people he described as BNP terrorists. He said it was these people who were behind certain false charges that had been laid against him. The applicant claims the authorities will persecute him if he returns to Bangladesh because they are under the control of the BNP.
The Tribunal cites excerpts from questions put to the DFAT in Bangladesh concerning claims of the type made by the applicant and then in its findings and reasons rehearses those claims and provides its response to them. The Tribunal notes that because the applicant did not attend the hearing it was unable to explore a number of the claims which he had made with him. At [CB 221] the Tribunal says:
“Accordingly, while the Tribunal is willing to give the applicant the benefit of the doubt and accept that when he was a student he was an ordinary member of the Chattra League, and may have attended meetings and demonstrations, from the claims made by the applicant the Tribunal does not accept that he had any political profile whatsoever or was in a position either of leadership or influence. It follows that the Tribunal does not accept that his role in local politics was anything more than at most a member or that he was "a promising Chattra League Leader” as he claims.”
The Tribunal did not accept, in the absence of further assistance from the applicant, that he had received death threats or that people were trying to destroy his political career.
The Tribunal considered the attacks spoken of in 1995 and 1996. The gravamen of the Tribunal's decision in relation to these matters was that it could not be satisfied from the evidence that was put to it by the applicant in his application and correspondence that these attacks had taken place. It noted that in regard to one bomb attack the applicant was in fact in the United Arab Emirates at the given time, but charitably gave the applicant the benefit of the doubt and assumed that he had made an error in his dates.
In regard to the charges which had been levelled against the applicant the Tribunal noted that they came from a period considerably before the applicant had first left the country in 1999 and then left it again in 2002. The Tribunal considered and noted the prevalence of politically motivated false charges and the independent country information that indicated that the courts in Bangladesh were quite capable of throwing out, and had indeed thrown out, many such charges in the past. On the other hand, the Tribunal also noted that some of these allegedly false charges turned out to have some basis in fact because of the well-documented violence with Bangladeshi politics. It followed from these conclusions that if the charges were false the applicant would be given the benefit of State protection and if they were not false then they were not Convention related.
The applicant seeks of this court Constitutional writs on the ground that the Tribunal had fallen into jurisdictional error in the manner in which it came to its decision. In his amended application filed on 3 May 2004 the applicant states that:
“The Tribunal did not provide the applicant with particulars of information to the applicant, in the Australian Embassy reports or any other adverse materials, which formed part of the reason of the Tribunal's decision.”
The DFAT reports to which I have already referred are at [CB 218-220] and are clearly matters that come within the exception found in s.424A(3)(a) of the Act. To the extent that "adverse materials" includes reports concerning the laying of false charges, those documents (the charges) were of course provided by the applicant himself and would fall within the exception contained in s.424A(3)(b). The amended application then goes on to talk expansively of procedural fairness but neglects to note that this application was one that was covered by s.422B of the Act.
The applicant then provided the court with some written submissions of 12 pages in length. The applicant told me that he had not written these submissions himself, they had been provided to him by a friend. Whilst they are not the least responsive submissions that I have seen in cases of this nature they can, without straining the language, be classed as template. This Court has sought guidance in the past on the attitude to be taken to documents of this nature which the applicant cannot speak to and has almost certainly no understanding of their contents. But until such guidance is given one must treat them as the applicant's papers. In this case the document gives a lengthy discussion on s.424A(2)(a) of the Act with particular reference to the decision of the High Court in SAAP & Anor v Minister for Immigration [2004] HCA 285. But in this case the failure to comply with s.424A seems to be limited to the provision of the independent country information which, as I have already found, is exempted by s.424A(3)(a); see NAMW v Minister for Immigration [2004] FCAFC 264 at [138] and MZWBW v Minister for Immigration [2005] FCAFC 94 at [10]. If the applicant is arguing that the Tribunal should have given him the benefit of its reasoning processes then that argument is misconceived; WAGP v Minister for Immigration [2002] 124 FCR 276 at [282].
Before me today the applicant told me that he did not consider that his claims have been properly dealt with and that he has come to this court to obtain justice which he did not receive before. He told me that if he was returned to Bangladesh he would have no one to help him as his parents were old. I am not clear whether this was a reference to his possible refoulment or to the provision of more material that might have assisted him. If the former then that is not a matter that goes to the jurisdiction of the RRT. If it was the latter then this is not a matter the court can now deal with as it should have been raised with the Tribunal.
In all the circumstances I am unable to find any grounds upon which this decision of the RRT can be impugned. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,000.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: