SZDYV v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1393

FEDERAL COURT OF AUSTRALIA

SZDYV v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1393

SZDYV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1155 of 2005

SACKVILLE J
SYDNEY
30 SEPTEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1155 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDYV APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SACKVILLE J
DATE OF ORDER:	30 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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

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	NSD 1155 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	SACKVILLE J
DATE:	30 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of the Federal Magistrates Court given on 27 June 2005. The Magistrates Court rejected a challenge by the appellant to a decision of the Refugee Review Tribunal (‘RRT’) handed down on 20 May 2004.  The RRT had affirmed a decision of a delegate of the respondent (‘the Minister’) refusing to grant the appellant a protection visa.

2. The appellant is a citizen of Bangladesh.  He left that country in 1998 and lived and worked in Palau before arriving in Australia in October 2003 on a student visa. He applied for a protection visa on 24 October 2003. 

3. The appellant claimed that he had been an ‘executive member for the district committee Awami League’ and feared persecution at the hands of Bangladesh National Party (‘BNP’) activists.  He claimed to have been beaten by BNP ‘hoodlums’ in 1994 and to have been the subject of false charges filed against him.

4. The appellant supported his application for a protection visa with a short statement.  No supporting documentation was provided.  The delegate drew attention to the fact that the appellant’s claims were ‘vague, generalised and unsubstantiated’.

5. The appellant indicated to the RRT that he would attend the hearing together with his migration agent.  On the day of the hearing, the agent informed the RRT in writing that the appellant would not be attending the hearing.  No suggestion was made that the appellant was unfit to attend the hearing. 

6. Not surprisingly, the RRT affirmed the delegate’s decision.  The RRT pointed out that it had advised the appellant that it could not make a decision in his favour on the material he had presented.  Despite this, the appellant had not provided any additional information to counter the delegate’s findings or otherwise to support his claims and he had declined the opportunity to give evidence.  The RRT concluded as follows:

   ‘The [appellant] has provided almost no information at all about the claims he has made and I have had no opportunity to test their truthfulness.  In the circumstances, I am not satisfied, on the evidence before me, that the [appellant] is a person to whom Australia has protection obligations under the Refugees Convention…’.

7. The appellant’s application for judicial review, as the magistrate observed, used a familiar precedent, listing a number of grounds without providing any particulars to indicate how they might have had any bearing on the particular RRT decision under challenge.  The Magistrate addressed each of these grounds and gave cogent reasons for rejecting them.

8. The appellant also claimed that he had been unable to attend the RRT hearing because he had been sick on the day.  Although no affidavit evidence supporting that claim had been filed, the appellant accepted the Magistrate’s invitation to give evidence on oath. 

9. The Magistrate found that the appellant had been unwilling to give direct answers to simple questions.  His Honour was not satisfied that the appellant had suffered any illness preventing him from attending the hearing.  He pointed out that the appellant admitted having given instructions to his agent to send the letter to the RRT.  His Honour considered that if the appellant had suffered from a medical condition, the agent would have referred to that fact in the letter.

10. The notice of appeal filed by the appellant is in a standard form and does not relate to the circumstances of the case.  The appellant has filed written submissions.  These, too, are in a standard form and do not suggest that the Magistrates Court committed any error of law in dismissing the appellant’s application.  In his oral submissions, the appellant did not add anything of substance.

11. The appeal is without merit and must be dismissed.  The appellant must pay the Minister’s costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:            30 September 2005

Counsel for the Respondent:	Mr A Potts
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	30 September 2005
Date of Judgment:	30 September 2005