SZDQF v Minister for Immigration
[2004] FMCA 650
•8 September 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZDQF v MINISTER FOR IMMIGRATION | [2004] FMCA 650 |
| MIGRATION – Appeal of Minister’s decision not to grant refugee status – objection to competency – no ground of jurisdictional error made out – application dismissed. |
Migration Act 1958
| Applicant: | SZDQF |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ1537 of 2004 |
| Delivered on: | 8 September 2004 |
| Delivered at: | Sydney |
| Hearing date: | 8 September 2004 |
| Judgment of: | Baumann FM |
REPRESENTATION
Applicant appearing in person
| Counsel for the Respondent: | Mr Rielly |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the objection to competency be upheld and the application be dismissed.
That the applicant pay the respondent’s costs fixed in the sum of three thousand dollars ($3,000.00).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
SZ1537 of 2004
| SZDQF |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Settled from extempore reasons)
Background
The applicant is a national of Bangladesh. He arrived in Australia on
2 September 1999. He applied for a protection visa on 1 October 1999 on the grounds that he had a well founded fear of persecution by reason of his political opinions and as a prominent member of the Freedom Party (the “FP”). The Minister's delegate refused the application on 17 November 1999. The applicant sought a review by the Refugee Review Tribunal and a hearing of the Tribunal on 11 May 2000 resulted in reasons being delivered on 6 June 2000 which affirmed the decision not to grant a protection visa.The applicant who is now in detention filed an application for review in this court on 25 May 2004. The respondent has filed an objection to competency because of the failure by the applicant to file the application within the 28 day time limited prescribed by section 477(1)(a) of the Migration Act 1958. I shall in due course in these reasons return to that issue.
The applicant's application for review filed 25 May 2004 recited fairly general grounds including:
(a) The RRT made a decision in bad faith.
(b) The Migration Act 1958 was not observed properly.
(c) The RRT relied upon and presumably did not properly assess the country information.
(d) The RRT erred in misunderstanding the claims according to law.
The application finally stated:
“I will provide more details later.”
Despite directions made 17 June 2004, when the applicant appeared in person with an interpreter at the cost of the court, for the applicant to file and serve an amended application supported by affidavit, the applicant has not done so. No written submissions have been provided to the court by or on behalf of the applicant. In this regard, the applicant today sought an adjournment. He says that the person who helped him complete the application is no longer in Australia and has not returned.
I am satisfied he has had every reasonable opportunity to make attempts to get assistance to expand on his grounds for this application if he had wished to do so. Considering the long period of time which has elapsed since the decision of the Tribunal was made it is not appropriate for an adjournment to be granted.
The applicant claims he was a "prominent political activist" for the Freedom Party, since joining that party in 1993 and had grown close to its leader Colonel Faruk Rahman. He said that during the 1996 election he had numerous clashes with members and sympathisers of the Awami League (who ultimately won the election). He said they had tried to kill him several times and had attacked his house on many occasions. As a result of what the applicant claimed were outstanding arrest warrants against him, he went into hiding and managed, with assistance, to leave Bangladesh for Australia.
The RRT simply did not believe the applicant, saying he "had a tendency to alter his evidence when challenged" and concluding:
“In sum, I find the applicant's evidence lacks credibility. I'm not satisfied that he was in the FP and therefore I'm not satisfied that he experienced or would experience any harm over his claimed political opinion or activities. His claims regarding persecution of FP members in general is unsupported by independent evidence. For all the reasons given above I am not satisfied the applicant has a well-founded fear of persecution for a convention reason in Bangladesh. I consider he left Bangladesh for reasons unconnected with the fear of persecution.”
It is apparent the member did have regard to the country information concerning the political situation in Bangladesh and in the reasons states that the Tribunal "discussed independent evidence on these matters with the applicant". The general claim of bad faith is not particularised and none of the alleged errors of law have been particularised.
Whilst the applicant may not have sufficient expertise to identify jurisdictional error on the information available to this court I have formed the view that the findings of fact and conclusions reached by the Tribunal on the applicant's claims were abundantly open to the member on the evidence available to her. I repeat, the somewhat trite observation that this court cannot review the merits of the Tribunal's decision and important issues of credibility which are raised in this matter were as McHugh J observed in MIMIA ex parte Durairajasingham:
“...a function of the primary decision maker par excellence.”
The applicant has not been able to establish any jurisdictional error in the RRT proceedings. Accordingly, it follows that the decision is a privative clause decision and because the decision is a privative clause decision, section 447(1)(a) of the Migration Act 1958 applies. The failure to file the application within the time limits means that the objection to competency must be upheld and that the application must be dismissed as incompetent. I intend to so order and do order.
As a result of the applicant having lost this case, the respondent seeks that the applicant pay the respondent's costs of $4,250. I appreciate the applicant has got no money, is in detention, but costs ought in this case in my view follow the event.
I propose to make an order that the applicant pay the respondent's costs fixed in the sum of $3000.
I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Baumann FM
Associate:
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