SZGBU v Minister for Immigration - [2006] FMCA 1192

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGBU v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1192

MIGRATION – RRT decision – Bangladeshi applicant – claiming political and religious persecution – Tribunal found claims fabricated – no error found.

Migration Act 1958 (Cth), s.424A, 424A(1), 474, 483A
Acts Interpretation Act 1901 (Cth) s.8

Migration Litigation Reform Act 2005 (Cth) Sch.1 cl.41

Applicant S v Minister for Immigration (2004) 206 ALR 242
SZASX v Minister for Immigration [2004] FMCA 680
SZASX v Minister for Immigration [2005] FCA 68

Applicant:

SZGBU

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 923 of 2005

Judgment of:

Smith FM

Hearing date:

07 August 2006

Delivered at:

Sydney

Delivered on:

07 August 2006

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Ms L Clegg

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.
The application is dismissed.
The applicant must pay the first respondent’s costs in the sum of $4,250.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 923 of 2005

SZGBU

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 14 April 2005 under s.483A of the Migration Act 1958 (Cth). It seeks orders by way of judicial review of the decision of the Refugee Review Tribunal dated 2 March 2005 and handed down 22 March 2005. The Tribunal affirmed the decision of a delegate taken on 26 May 2000 which refused to grant a protection visa to the applicant.
The long period between the decision of the delegate and the decision of the Tribunal is in part accounted for by an earlier decision by the Tribunal, handed down on 4 April 2003, which was set aside by order of this Court on 16 April 2004. The grounds upon which that order was made do not appear in the material before me.
The Migration Litigation Reform Act 2005 (Cth) has repealed s.483A, but the repeal does not affect the continuance of this proceeding (see Sch.1, cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth) s.8).
The Court's powers under s.483A are subject to limitations under Part 8 of the Migration Act. These have the effect that I cannot set aside the Tribunal's decision and send the matter back, unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant's refugee claim should be believed, nor whether he qualifies for a protection visa.
The applicant arrived in Australia in February 2000 on a business visa. On 28 March 2000, an application for a protection visa was lodged on his behalf by a migration agent, Mr Haque. The application attached a statement explaining why the applicant sought protection…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] FMCA 1192
Decision Date: 7 August 2006

CaseChat Overview and Summary

The case of SZGBU v Minister for Immigration involves an applicant who arrived in Australia on a business visa in February 2000 and subsequently applied for a protection visa. The application was made by a migration agent, Mr Haque, who provided a statement explaining the applicant's reasons for seeking protection against return to Bangladesh. The applicant claimed that he belonged to the minority Hindu community in Bangladesh and faced oppression from the mainstream Muslim community and political opponents, which led him to leave the country. The case was heard by the Tribunal, which questioned the applicant about his claims and provided him with country information and material to comment on.

The legal issues before the court included whether the applicant was a non-citizen in Australia to whom a liability under a law of the Commonwealth applied, and whether the applicant was a person to whom paragraph 36(2)(a) of the Migration Act applied. The court also needed to determine if the applicant was a person to whom paragraph 36(2)(aa) of the Migration Act applied. The court had to consider the applicant's claims of persecution as a Hindu person in Bangladesh and whether they were credible.

The court found that the applicant's claims were not credible and dismissed the application. The court found that the applicant had not established that he was a non-citizen in respect of whom a liability under a law of the Commonwealth applied. The court also found that the applicant was not a person to whom paragraph 36(2)(a) or paragraph 36(2)(aa) of the Migration Act applied. The court was not satisfied that the applicant had established that he was a Hindu person who had been persecuted or feared persecution in Bangladesh on account of his religion.

The court ordered that the application be dismissed and that the applicant pay the first respondent's costs in the sum of $4,250. The Tribunal was included as the second respondent, and the solicitor for the first respondent undertook to file a submitting appearance by the second respondent.

Orders

Orders of the court

The Tribunal is included as second respondent, and note the undertaking by the solicitor for the first respondent to file a submitting appearance by the second respondent.

The application is dismissed.

The applicant must pay the first respondent’s costs in the sum of $4,250.

Background

Background to the litigation

The applicant arrived in Australia in February 2000 on a business visa. On 28 March 2000, an application for a protection visa was lodged on his behalf by a migration agent, Mr Haque. The application attached a statement explaining why the applicant sought protection in Australia against return to his country of nationality, Bangladesh. The statement was subsequently amended, and its contents were eventually summarised by Mr Haque in a submission to the Tribunal made on 16 June 2004:Background of the applicant1. The applicant belonged to the minority Hindu community in Bangladesh is subject to oppression by the mainstream Muslim Community in Bangladesh. He was also oppressed by his political opponents, which resulted him to leave the country. Political and religious persecution was the root cause for him to leave the country.2. The applicant’s father was a freedom fighter who fought for the nation during the Liberation War in 1971. Since 1983 the applicant’s involvement in politics turned into a leadership quality which enabled him to become the vice president of the Jatiya Party Sutrapur Thana branch and in 1989 the applicant became the executive member of the Jatiya Party Dhaka city committee and in 1997 the applicant was elected the joint secretary of the Jatiya Party. He was oppressed by the Awami League activist and fanatic Muslims in the region.Oppression towards the applicant by the political opponents:3. During last Awami regime (1996-2001), the applicant received ill treatment as the leader of the Jatiya party. As a Hindu he received ill treatment by the then ruling party the Awami League. 4. On 3 December 1990 the applicant’s father’s business was looted and fired by the activist of the Awami League. 5. On 24 December 1994 the applicant was encircled by a group of BNP men at Paltan and they beat him mercilessly and warned him to leave the country as Hindus for the India not Bangladesh.6. On 12 August 1999 at 7 pm he was attacked by a group of Awami League men near Loharpool at Sutrapur. They beat him severally. As a result the applicant was admitted to a local clinic and spent a few days to recover. In the course of the proceedings before the Tribunal, Mr Haque also sent to it extensive internet and other general material concerning Bangladesh. The applicant attended a hearing held by the reconstituted Tribunal on 15 February 2005. The Tribunal gave an account of the hearing, in which it questioned the applicant about his claims, and also about his knowledge of the Jatiya Party and his claimed activities for that party. It also questioned the applicant concerning his claims of fear of persecution as a Hindu person in Bangladesh. The Tribunal said that it put to the applicant country information concerning the Jatiya Party and the position of Hindus in Bangladesh. It also put material to the applicant concerning the outcome of false charges laid against people in Bangladesh, and asked the applicant to comment on various concerns it had about his claims.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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