SZIZH v Minister for Immigration
[2006] FMCA 1580
•17 October 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZIZH v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1580 |
| MIGRATION – RRT decision – Bangladeshi claiming political persecution – consented to decision without hearing – no arguable case – application dismissed at show cause hearing. |
Federal Magistrates Court Rules 2001 (Cth), rr.44.12, 44.12(1)(a)
Migration Act 1958 (Cth), s.476
| Applicant: | SZIZH |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1821 of 2006 |
| Judgment of: | Smith FM |
| Hearing date: | 17 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 17 October 2006 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Ms E Palmer |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application is dismissed under Rule 44.12 on the ground that it does not raise an arguable case for the relief claimed.
The applicant must pay the first respondent’s costs in the sum of $2,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1821 of 2006
| SZIZH |
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 28 June 2006, in which the applicant seeks an order that the respondents show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 17 May 2006 and handed down on 6 June 2006. The Tribunal affirmed a decision of a delegate made on 6 March 2006 refusing to grant a protection visa to the applicant.
The application was returnable before me at a first court date on 26 July 2006. The applicant did not attend, but I gave him a second opportunity. On 9 August 2006 he did attend, and was assisted by a Bengali interpreter. The nature of the proceeding was explained to him by me and in an information sheet. He was given an opportunity to file an amended application and additional evidence by 29 September 2006, after being referred for free legal advice and receiving a bundle of relevant documents. I explained to the applicant that his application might be dismissed today if I were not satisfied that it raised an arguable case for the relief claimed.
The applicant has filed an amended application, to which I shall refer below, and has received a referral for advice. He attended today, and heard the Minister’s argument why his application should be dismissed.
The applicant arrived in Australia in June 2005 on a visa which, according to the delegate, was granted on the ground that the applicant would be a kidney donor to his cousin. On 13 December 2005 the applicant filed an application for a protection visa. No agent assisting the applicant was disclosed. A brief statement attached to the application explained why he sought protection against return to his country of nationality, Bangladesh.
The applicant said he was a young man who supported the Awami League Political Party. He inherited a rickshaw business, which he claimed was put out of business by “BNP terrorists”. He claimed to have engaged in political activities in support of rickshaw pullers, and to have been elected secretary of his local Awami League.
After closing down his rickshaw business he worked in his uncle’s hardware shop.
He claimed that “from mid of the 2003, the BNP terrorists Kayum and his gang several time targeted to kill me”, but gave no details of this. He also claimed that following a bomb incident in August 2004 he was the subject of false accusations, and became the subject of searches by the police and the “Repeat Action Battalion” (“RAB”). He claimed to have been in hiding until fleeing the country. No supporting evidence or further details were given to the Department.
When he appealed to the Tribunal, he was sent an invitation to a hearing on 6 June 2006. The letter of invitation told the applicant:
The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.
The applicant was invited to attend, and to send any new documents or written arguments he wanted the Tribunal to consider.
The Tribunal received by facsimile on 9 May 2006 a letter signed by the applicant enclosing a ‘Response to Hearing Invitation Form’, which answered:
No. I do not want to come to a hearing. I consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me to appear before it.
The applicant’s letter also enclosed what was said to be:
… a reference letter issued by the president of the Dhaka City Awami Jubo League. The letter has expressed about my engagement with the Awami Jubo League Dhaka, Bangladesh.
I hope the reference letter would help to the Tribunal Member to make a positive decision. If you need any further information please write me in the address provided.
The enclosed letter purported to be signed by the president of the Dhaka City Awami Jubo League, and referred to the applicant as the son of a local president who had managed a rickshaw business.
It described the applicant:
He was a die-hard leader of the Jubo League and Sramik League. Due to his huge contribution in his level in the party he was very popular in the party. Later he was elected as secretary of the Sramik League of Sutrapur Dhaka in 2003. Several times BNP terrorist attempted to kill him. From my personal inquiry I have no hesitation to declare him as a very good and young leader of the Awami Jubo League who has moral courage for leadership. So far as I know he is hiding to elude RAB, as they are searching for him for unknown reason.
A note on the Tribunal’s file indicates that on 10 May 2006 an officer of the Tribunal:
…rang the applicant and confirmed - through an English speaking friend who was with him - that the applicant did not, as his response to hearing indicates, wish to have a hearing.
In its statement of reasons, the Tribunal referred to the history of the matter and identified the claims made by the applicant. It referred to the letter sent by the applicant, and said that it was “very general” and noted that it did not:
provide any specific information about the persecution of the applicant in the past, or of the likelihood of persecution in the future, beyond a vague reference to “several” attempts by “BNP terrorists” to kill him. The Tribunal therefore gives the Secretary’s letter little weight.
The Tribunal’s conclusion was expressed as follows:
While the Tribunal accepts the evidence submitted to the Tribunal that the applicant is a Bangladeshi national and was involved at some level in Awami League politics in Bangladesh, and further accepts the independent evidence of violence in Bangladeshi politics, the claims before the Tribunal regarding the applicant are very general and lacking in detail. While Mr Ahmed refers to “several attempts” to kill the applicant, there is no information in relation to time, place or method of operation. The applicant was invited to appear before the Tribunal but did not do so, leaving his claims unclarified and questions unanswered. On the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that he has a well founded fear of persecution within the meaning of the Convention if he returns to Bangladesh in the foreseeable future.
The applicant’s original application filed in this Court has followed a precedent, without any apparent tailoring to meet the decision of the present Tribunal. It makes general assertions of breach of procedure or fairness, non-observance of procedures and overlooking the merits, and other contentions which have no apparent arguable substance.
The applicant’s amended application also appears to have been taken from a document prepared for another case, since its criticisms all seem to be directed at findings by a Tribunal which has rejected evidence on the basis that it was fraudulently produced. However, as I have indicated above, that was not the path of reasoning followed by the present Tribunal. The present Tribunal failed to be satisfied due to the absence of the applicant from a hearing, at which he could have presented details of his claims and allowed himself to be questioned.
I have carefully considered all the contentions made in the amended application, and am unable to identify any one of them raising an argument with any substance or prospects of success.
Before me the applicant made unsworn statements that he had not attended the Tribunal hearing because he was too sick. This appears inconsistent with his letter to the Tribunal waiving his right to a hearing, and his conversation with the Tribunal officer, which I have referred to above. He made no contention that he attempted to tell the Tribunal that illness was the reason for his non-attendance, nor that he sought any rescheduling. On the material before me, I can see no arguable jurisdictional error on the part of the Tribunal when it proceeded on the basis that the applicant had consented to the Tribunal deciding the matter without a hearing. I can identify no arguable ground of jurisdictional error generally.
I have not been satisfied that the application raises an arguable case for the relief claimed, and I consider it appropriate to dismiss the application under r.44.12(1)(a).
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Yvette Harvey
Date: 31 October 2006
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