SZBQT v Minister for Immigration - [2004] FMCA 107

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBQT v MINISTER FOR IMMIGRATION

[2004] FMCA 107

MIGRATION – Review of decision of RRT – applicant posits no grounds upon which the Tribunal is said to have fallen into jurisdictional error.

Migration Act 1958 (Cth), s.91R
Abebe v The Commonwealth (1999) 197 CLR 510
Waterford v The Commonwealth (1987) 163 CLR 54
MIEA v Wu Shan Liang (1996) 185 CLR 259

Applicant:

SZBQT

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 2170 of 2003

Delivered on:

23 February 2004

Delivered at:

Sydney

Hearing date:

23 February 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

Applicant in person

Counsel for the Respondent:

Mr S Lloyd

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 2170 of 2003

SZBQT

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

The applicant in this matter is a citizen of Bangladesh. He arrived in Australia on 6 October 1992. On 17 June 2003 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 24 June 2003 a delegate of the Minister refused to grant a protection visa and on 26 June 2003 the applicant applied for review of that decision.
The Refugee Review Tribunal arranged for the applicant to attend before it to give evidence, which he did together with an adviser from RACS. On 3 October 2003 the Tribunal determined to affirm the decision not to grant the protection visa to the applicant.
The applicant commenced proceedings in this court, seeking review of the decision of the Tribunal. In the application he states that the decision of the Tribunal was based on the reason that, "It has no power to determine my application under the Act," and then gives six grounds of the application.
The first ground notes that the Tribunal accepted there was a risk of violence in political life in Bangladesh. The second makes reference to a human rights report of 31 March 2003 confirming that the human rights record of the Bangladesh government remains poor. The third ground notes that there is widespread police corruption and lack of discipline amongst the security forces in Bangladesh.
The fourth ground notes that the security forces committed a number of extra-judicial killings and deaths in custody more than doubled from 2001. The fifth ground notes that political parties were often violent, causing deaths and numerous injuries. The sixth ground notes that the government and some strong political leaders rarely punished the persons responsible for torture or unlawful deaths.
It will be immediately seen that none of these grounds really deals with any allegation that the Refugee Review Tribunal, in considering the matter, fell into jurisdictional error.
The applicant's claim to have a well founded fear of persecution for the Convention reason of political opinion arises out of his having been a popular student leader with the BNP Party in 1987 and 1988. He stated that the JI Student Wing threatened him at the time but he felt safe because the BNP Group was large on the campus at which he was studying. He later studied in Dakar but remained in hiding whilst he was there.
The applicant left Bangladesh for Australia in 1992 and remained here until about 1996 when he returned to Bangladesh. He told the Tribunal that he had no trouble then, he stayed with friends but if he had to return for a lengthy period, he would be required to go back to his family property. I understand that the applicant got married in 1996 and then returned to Australia. It was only in 2003 that he sought asylum in this country following his detention in Australia after his wife and a family uncle had lodged a case against him.
There is very little detail about the applicant's claims found in the Tribunal's reasons for decision. In all probability this is because there are very few claims, particularly of any recent history, that are being made by the applicant.
At [CB 74] the Tribunal says:
“ I found the applicant's evidence to be generally "unconvincing" I am satisfied that the Applicant is a Bangladeshi national. He has been in Australia since 1992, save for a few months in 1996 when he returned to Bangladesh. He claims that he is unwilling to return to Bangladesh as he fears that he will be persecuted by the Student Wing of the Jamat Islami political party. He claims they will seek to harm him because, or substantially because of his refusal to join them in the late 1980s. I consider that it is unlikely that the applicant has a genuine fear of persecution.

I note that he has been in Australia for more than 10 years without seeking protection and that he had returned to Bangladesh for some months in 1996, neither of which seems to be consistent with a genuine fear of persecution. Even if the applicant does have a genuine fear of persecution, I do not accept that it is well founded.”
The Tribunal commented that that it did not think it likely that the student wing of the JI would seek to harm in 2003 because he had joined a rival political group 15 years ago. The Tribunal did not accept some evidence given by the applicant that he JI or some affiliated group had threatened him in this country.
The applicant was unrepresented today. The matters which he put to me all related to the facts that had been placed before the Tribunal. He did not provide me with any assistance in illuminating some jurisdictional error into which the Tribunal may have fallen.
The findings by the Tribunal appear to me to have been open to it on the facts which were presented. To the extent that the Tribunal erred in making any finding of fact, there is no error of law, see Abebe v The Commonwealth (1999) 197 CLR 510; Waterford v The Commonwealth (1987) 163 CLR 54 at [770]. Likewise the court cannot review the merits of the Tribunal's decision MIEA v Wu Shan Liang (1996) 185 CLR 259 at [272].
The Tribunal in this particular case set out clearly the matters which it had to consider and the qualifications upon its powers particularly those found under s 91R(1) of the Migration Act 1958 (Cth). It found that it was unable to be satisfied that the applicant had demonstrated either a subjective or objective fear of persecution and it did not believe that if the applicant returned to Bangladesh he was likely to be harmed by a party which, whilst it may have been in opposition when he was a student leader, was now in coalition with the BNP, the party which the applicant supported.
In all the circumstances I am unable to find any grounds upon which I could review the Tribunal's decision in this case, I must therefore dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.2(2)(a) of the Federal Magistrates Court rules.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: