SZMTF v Minister for Immigration - [2009] FMCA 470

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMTF & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 470

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth), ss.91R, 424A, 425

BRGAA of 2007 v Minister for Immigration and Citizenship and Another (2007) 164 FCR 381
VBAO v Minister for Immigration and Multicultural and Indigenous Affairs and Another (2006) 233 CLR 1
VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32

Applicants:

SZMTF & SZMTG

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2395 of 2008

Judgment of:

Barnes FM

Hearing date:

6 May 2009

Delivered at:

Sydney

Delivered on:

6 May 2009

REPRESENTATION

Applicants:

In person

Counsel for the Respondent:

Mr T Reilly

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application be dismissed.
That the applicants pay the costs of the first respondent fixed in the sum of $4,500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2395 of 2008

SZMTF & SZMTG

Applicants

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal signed on 6 August 2008 and handed down on 26 August 2008 affirming a decision of a delegate of the first respondent not to grant the applicants protection visas.
The applicants, who are husband and wife, arrived in Australia in January 2008 and applied for protection visas in February 2008. The applicant husband (the applicant) provided a statement in connection with the protection visa application in which he set out his claims to fear persecution in Bangladesh, in essence because of his Hindu religion and pro-Awami League political opinion and activities. He claimed to have been injured by radical Muslims in the BNP in the past and that an influential Muslim BNP leader had occupied a family house.
The application was refused by a delegate of the first respondent and the applicants sought review by the Tribunal. The Tribunal invited the applicants to attend a Tribunal hearing. Both the primary review applicant and his wife attended the Tribunal hearing.
In its reasons for decision the Tribunal outlined in some detail the claims made by the applicants to the Department and in a statutory declaration and supporting documentation and the claims made at the hearing by the applicant and his spouse. It summarised in some detail the conduct of the Tribunal hearing.
After setting out independent country information in relation to the situation in Bangladesh, the Tribunal accepted that the applicant was a citizen of Bangladesh and that he claimed to fear persecution on the grounds of religion as a Hindu and due to his political opinion as a former member of the Awami League. It recorded that he had stated that the main reason he could not return to Bangladesh was because he was a Hindu and because Muslims were occupying his house and that when he was a student he was in the Awami League and the Chattra League and canvassed for the party. He claimed that he was warned on a few occasions by opposition parties and that in November 1986 he was kidnapped, tortured and warned not to continue with political activities. The Tribunal recorded that the applicant's evidence was that this prompted him to study overseas and that he had had no involvement with the Awami League and the Chattra League since leaving Bangladesh some 18 years prior to the Tribunal decision.
The Tribunal first considered the applicant's claims based on political opinion. It was not satisfied that there was a real chance he would be persecuted for his political opinion whether real or implied if he were to return to Bangladesh now or in the reasonably foreseeable future. It had regard to his evidence that he had not been a member of the Awami League and Chattra League in Bangladesh since 1989 and had lived outside Bangladesh for more than 18 years and also to the fact that he had returned to Bangladesh regularly since 1989. It accepted that the applicant had not been a member of either of those organisations since at least 1989 and found that he did not have a political profile in Bangladesh because of any past or present participation in the Awami League and the Chattra League. It also had regard to country information indicating that political activities were banned at present in Bangladesh.
On the basis of that information and findings about the applicant’s lack of involvement in organisations for at least 18 years (despite having returned to Bangladesh a number of times), the Tribunal found the applicant would not be actively involved in politics if he returned to Bangladesh now or in the reasonably foreseeable future.
The Tribunal addressed the applicant's claims based on religion. It accepted that he was a Hindu and summarised his primary claim at hearing as a claim that he feared harm as a Hindu because his life had been threatened by persons who had forcibly occupied some of his family's properties in Bangladesh. He claimed that Muslims had occupied the family property and that the authorities hesitated to take action against Muslims. A particular named person who had occupied his father's property was said to be a leader in the local BNP.
The Tribunal described the claims about the family property and the applicant's claims that family land was appropriated in 1991 and 2002. The Tribunal recorded that the applicant stated that he had twice initiated Court action against those who had occupied the land and property and that as a result his life had been threatened.
The Tribunal accepted that the applicant's family had lost some property as a result of it being occupied or expropriated without the family's agreement, having regard to country information about the impact of appropriation on Hindus in Bangladesh which indicated that many Hindus had been unable to recover such land. It also accepted that there was a nexus between the appropriation of property and the applicant and his family's religion as Hindu, a minority religion.
The Tribunal accepted that the applicant had taken measures to regain his family property and that he had pursued the issue of regaining this property since 2002 when his father and the rest of his immediate family fled to India. However the Tribunal was not satisfied there was a real chance the applicant would be persecuted if he returned to Bangladesh. It had regard to his own evidence that since arriving in Australia in 2003 he had returned to Bangladesh three or four times and had stayed in one of the three family houses described, despite warnings that it was dangerous for him to do so.
The Tribunal recorded that the applicant claimed when he last visited Bangladesh in late 2007 his life was threatened, as a security guard showed him a gun. However the Tribunal did not accept that the applicant had been subjected to serious harm, or that there was a real chance he would be persecuted for the reasons he claimed.
It had regard to a number of matters. First, the applicant's evidence regarding the warnings he claimed to have been given and the alleged threat to his life was said to be vague and to lack detail. The Tribunal found the applicant had not provided any detail about the warnings he received. He had described the threat to his life as consisting of a security guard showing him a gun. However there was no evidence before the Tribunal about whether the guard was employed by the people who appropriated the property or the circumstances which led to the guard showing the applicant a gun. The Tribunal was not satisfied that the incident of a security guard showing the applicant a gun amounted to persecution.
It also found the applicant's behaviour, in particular returning to Bangladesh on a number of occasions to pursue attempts to regain the property and the fact that he did not lodge a protection visa application until February 2008 (despite claiming he had received warnings since 2002), was inconsistent with his fear to claim persecution in Bangladesh. The Tribunal noted that the applicant’s claim was that his life was threatened on his last return to Bangladesh in late 2007 and that this had prompted him to lodge a protection visa application and that the situation had deteriorated, but was of the view that the applicant's evidence and behaviour supported a finding that the threats that he received prior to late 2007 did not amount to serious harm as they did not stop him returning to Bangladesh or cause him to lodge a protection visa application. As indicated earlier the Tribunal had also found that the claimed threat to his life in late 2007, which the Tribunal described as the incident of the security guard showing the applicant a gun, did not amount to serious harm within s.91R(1)(d) of the Migration Act.
The Tribunal also found that the applicant's evidence regarding the identity of the persons occupying his family properties was inconsistent and lacking in detail. It set out the applicant's claims about his family owning land and houses and that two of the properties had been occupied by Muslims since 2002. One of those people was said to have claimed that the applicant's father sold him the property, although the applicant denied this. He also claimed that the properties had been occupied by a named local BNP leader. The Tribunal referred to the fact that the applicant had also stated that this person had built his own house nearby and had installed other persons in the applicant's family houses. The Tribunal found that there was no other evidence before it about the identities of the claimed occupants of the family property, notwithstanding that court action was said to have been ongoing for some years. Moreover, the applicant himself claimed that he had stayed in one property to carry out repairs. The Tribunal found the fact that he could stay in one of the family's properties and carry out repairs to the property indicated that the applicant still had “ownership rights” in respect to at least some of his family's property. The Tribunal did not find it credible that the applicant would stay in one of his family's properties if serious threats of harm had been made against him by persons occupying a nearby property. The fact that he had done so, including during his most recent visit to Bangladesh, led the Tribunal to doubt his claim that he had been threatened with serious harm by those occupying the properties.
The Tribunal also considered the applicant's claim that the named BNP leader had stabbed his father in 1974 and the documents that he provided to the Department in relation to this incident. The Tribunal expressed some doubts about these documents, but found that even if the applicant was given the benefit of the doubt and the Tribunal accepted that that named person did assault his father in 1974, an issue remained as to why the applicant was prepared to live nearby and pursue court action against a person he feared would cause him serious harm and why he continued to stay in that property on return to Bangladesh. These facts led the Tribunal not to accept that the applicant did fear serious harm from this named person for the reasons he claimed. The Tribunal was not satisfied that the applicant had been threatened with violence and hence was not satisfied that he sought protection from the police because he feared violence. The Tribunal concluded that it was not satisfied the applicant had been subjected to serious harm or that there was a real chance he would be persecuted if he returned to Bangladesh.
It also was of the view that he could reasonably be expected to relocate within Bangladesh as the harm he claimed to fear was localised to a particular named area. It addressed the principles in relation to relocation and the applicant's claims about why he feared persecution and could not relocate within Bangladesh, particularly in light of his claim that he primarily feared those who were occupying the family properties. It referred to his claim that he would be persecuted by those people wherever he went in Bangladesh but did not accept this claim. It considered his evidence that he moved around and stayed in different places in Bangladesh to avoid persecution by the persons occupying his property. However the Tribunal did not accept that those persons would pursue the applicant if he relocated, as there would be insufficient motivation for them to do so as they would then have access to the family properties without interference and there would be little incentive for them to locate the applicant.
The Tribunal also addressed the applicant's claim he would be persecuted by these people in order to stop him pursuing the court cases. It had regard to his evidence that the cases had stalled because of delay that seem to be indefinite and ongoing and the absence of evidence that the applicant was likely to succeed or resolve these matters in the reasonably foreseeable future, given that the cases had commenced in 1991 and 2002 and that the protection visa application was not lodged until February 2008.
The Tribunal found these time periods between commencement of the court proceedings and lodgement of the protection visa application indicated that the applicant had not feared persecution in the past because of the court proceedings. It did not accept that his involvement in such court cases had caused him to be subjected to serious harm in the past or that he would be in the future for this reason. It found relocation within Bangladesh was a safe and reasonable option for the applicant if he did not wish to return to his family home district.
The Tribunal also considered the more general claim that the applicant feared persecution as a member of the Hindu minority and his claims about discrimination by the Bangladeshi government and the fears of his family after the 2001 riots. However it had regard to the fact that the applicant was not living in Bangladesh at the time of the riots or when his family fled and had not lived there for more than 18 years. It was not satisfied that the applicant was himself affected by these events, other than the loss of the family property. It observed that in spite of the family's fears of violence he had regularly returned to Bangladesh and had tried to regain the property. This led the Tribunal not to be satisfied that the applicant suffered serious harm is a result of the 2001 riots which were the cause of his family fleeing Bangladesh.
The Tribunal accepted that independent evidence indicated that there were sporadic attacks on religious and ethnic minorities including Hindus and a degree of generalised societal discrimination against Hindus in Bangladesh and the limitations that flowed from that, and also that there was an increased incidence of harassment and harm directed at Hindus by fundamentalist Muslims and decreasing religious tolerance and that to some extent government responses to such incidents had been ineffective. However, it also had regard to the fact that the Hindu minority was a relatively large one and that violence against Hindus where it occurred was essentially isolated, unsystematic and non-selective. It had regard to the applicant's tertiary degree and extensive employment experience overseas. It was not satisfied he would be deprived of an opportunity to earn a living in Bangladesh or that he had ever suffered past serious harm because of his Hindu religion or for any other reason.
While it accepted there was a remote chance that the applicant would be persecuted because he was a Hindu, it did not accept that this amounted to a real chance, particularly having regard to his visits to Bangladesh three or four times between 2002 and 2007. It was not satisfied that his religion alone would give rise to a well-founded fear of persecution.
The Tribunal considered the information provided to it at the hearing, including information that the principal of the applicant’s former college had been murdered. However, given that it did not accept that the applicant had a political profile in Bangladesh, it was not satisfied that the murder of the principal was in any way associated with the applicant or would have any consequences for him.
The Tribunal then turned to the position of the applicant's wife. The husband’s statements indicated that refugee claims were made on behalf of his spouse. It accepted that the applicant's wife was an Indian national and a Christian, whose son (the applicant husband’s stepson) had been stabbed by Hindu fanatics because he was erecting symbols of Christianity in a public place.
The Tribunal considered independent information about attacks on Christians in India and accepted that the spouse may have been subject to harassment and threats because of her relationship with her son. However it was of the view that most citizens were able to practise their religion without adverse interest from other religious groups or the authorities and that independent information did not establish there was widespread targeted violence against Christians by Hindus in India.
The Tribunal had regard to the relevant law in India and was satisfied that the case of the applicant's spouse's son had been registered with the police. It did not accept there was any evidence the police would not act in individual cases to prosecute perpetrators of assault or trespassing, regardless of the religion of the victims. While it accepted the police may have difficulty bringing the perpetrators to justice and may be inefficient and corrupt, it was not satisfied that they would fail to protect the applicant spouse in the future because she was a Christian or for any other Convention reason.
Furthermore, the Tribunal considered that the applicant spouse could avoid the harm she anticipated in her home area of India by relocating within India, on the basis of information indicating that certain parts of India were safer for Christians than other areas. While the applicant wife had stated she would prefer not to relocate because India was a poor country, the Tribunal was satisfied relocation was a reasonable option for the spouse of the applicant as she had assets, being a house and family located in other parts of the India.
The Tribunal noted the evidence of the applicant that he had not taken his wife to Bangladesh because he did not believe it was safe, but found there was no specific evidence that she would be unable to live in Bangladesh for a Convention reason.
The Tribunal concluded that the applicant had not suffered serious harm in the past for reason of political opinion, religion or other Convention reason. It was not satisfied there was a real chance he would face Convention-based persecution if he returned to Bangladesh in the foreseeable future. It was not satisfied that the applicants were persons to whom Australia had protection obligations.
The applicants sought review by application filed in this Court on 15 September 2008. There are a number of grounds in the application. The applicants did not file written submissions but were given an opportunity to make oral submissions today. I note that in the application the applicant indicated that he did not require an interpreter for the hearing in this Court. At the commencement of the hearing the applicant indicated he was able to understand and communicate in English. I asked him to advise if he had any difficulty at any time. He did not do so and confirmed at the end of the hearing that he had understood and had been able to communicate in English. There was no suggestion of any difficulty in that respect, or indeed any claim of any difficulty in that respect in relation to the Tribunal hearing.

The first ground in the application is that the Tribunal made a jurisdictional error in that it rejected the applicant's claim on the basis of the security guard showing him a gun. The applicant claimed the he never told the Tribunal at the hearing that there was any security guard involved.
The particulars to this ground are that “The applicant has not provided any detail about the warnings he received and he described the threat to his life as consisting of security guard showing him a gun”. These particulars appear to be extracted from the findings of the Tribunal in relation to the applicant's claims about the warning that he claimed he experienced when he last visited Bangladesh in late 2007. It appears from the applicant's oral submissions that he takes issue with what he says occurred in the Tribunal hearing and suggests that the Tribunal misunderstood his claims.
Insofar as the applicant takes issue with whether what the Tribunal recorded actually occurred in the Tribunal hearing and whether he said particular things about what occurred in late 2007, the difficulty that the applicant faces is there is no transcript of the Tribunal hearing before the Court. There is no evidentiary basis for a contention that the Tribunal misunderstood the claims that the applicant made during the hearing, that it did not accurately record them or that it was unfair to him as he contended generally on the basis of what he claimed that he said at the hearing. The Tribunal reasons for decision are comparatively detailed in relation to the Tribunal hearing. It recorded that the applicant claimed that he had been trying to get the family's property back but had been warned “a few times”, and that “when he went to Bangladesh in 2007 he was embraced by a guard who then showed him a gun”. He was said to have claimed that Muslim people were always occupying the properties of Hindu people and that they took the land that the applicant's family had in a village in 1991 and occupied part of other property in 2002 after his father went to India.
At a later point the applicant was recorded as saying that he had returned to Bangladesh three or four times since 2002 and that he had been warned every time. He also gave evidence that his father was stabbed in 1974 by the person said to be occupying the family property. He claimed he went to see the police when he was threatened in 2007, but the police said nothing could be done unless something actually happened to him. He also claimed that he had not been subjected to physical violence but had been warned a few times and told to leave Bangladesh and to go back to his own people.
In its findings the Tribunal referred to the claim by the applicant that when he last visited Bangladesh in late 2007 “his life was threatened as a security guard showed him a gun”. The Tribunal did not accept that the incident of a security guard showing the applicant a gun amounted to persecution. It referred to the vagueness and absence of detail in relation to the claimed warnings and threat to his life (which the applicant was said to have described as a security guard showing him a gun). It had regard to the absence of evidence about whether the guard was employed by the people who appropriated the family property or about the circumstances which led to the guard showing the applicant a gun.
It has not been established on the material before the Court that the Tribunal misunderstood the applicant's claims in this respect, or that its findings were not open on the material before it.
There is nothing in the applicant’s submissions to raise a more general concern with the conduct of the hearing. His contention that the Tribunal misunderstood the words used by him in relation to his claims about what occurred in 2007 is not made out on the evidence before the Court.
Insofar as the applicant’s contention is that the Tribunal did not obtain further details from him, the Tribunal is not obliged to prompt an applicant to provide further details in relation to his claims. It is apparent from the Tribunal account of what occurred in the hearing that the issue of and extent of his claims was raised with the applicant and that he had the opportunity to give evidence and make claims to the Tribunal. Ground 1 in the application is not made out.
The second ground in the application is that the Tribunal made a jurisdictional error in “wrongly” making a finding that it was not satisfied that the incident of the security guard showing the applicant a gun amounted to serious harm pursuant to s.91R(1)(b) of the Act. Insofar as this reiterates the contentions in relation to ground 1, it does not establish jurisdictional error.
As to whether the incident was serious harm within s.91R(1) of the Migration Act, this is essentially a factual issue for the Tribunal (see VDAU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 32 at [24]). As discussed in BRGAA of 2007 v Minister for Immigration and citizenship and Another (2007) 164 FCR 381 it is clear from the decision of the High Court in VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1 that a threat of harm in s.91R must be a real threat of persecution. Collier J suggested in BRGAA of 2007 at [26] that it was clear from VBAO that “verbal threats without more do not constitute threats amounting to serious harm for the purposes of s.91R”.
It has not been established that the Tribunal fell into jurisdictional error in this respect. Nor has it been established that the Tribunal failed to take into account relevant matters when considering whether what the applicant claimed he had experienced constituted serious harm for the purposes of s.91R.
Third, the applicant claimed that the Tribunal made a jurisdictional error in that it made observations on the basis of evidence which the applicant never gave at the hearing and rejected his claim because he still had ownership rights in respect of at least some of his property. In relation to the more general contention that the Tribunal made observations on the basis of the evidence which the applicant “never told” at the hearing, again there is no evidence to support this claim in the form of a transcript. It has not been established that the Tribunal misstated the applicant's evidence at the hearing as is contended. I note that the first respondent's written submissions drew to the attention of the applicants the absence of a transcript and that at the directions hearing an order was made for the applicants to file and serve any affidavit evidence including any transcript by a specified date, but that they did not do so.
Insofar as issue is taken with the Tribunal's reference to ownership rights, after discussing the occupation of the family property and the lack of detail and some differences in the claims, the Tribunal referred to the applicant's claim that the property where he stayed used to be occupied by a tenant but was now empty and that he himself stayed at the property in order to carry out some repairs. The Tribunal found the fact that the applicant could stay in one of the family's properties to carry out repairs indicated that the applicant still had “ownership rights” in respect of at least some of his family's properties.
The applicant took issue with the Tribunal finding that he had any ownership rights in relation to the property. It is apparent from the Tribunal reasons for decision that in describing the applicant's claims at the Tribunal hearing the Tribunal recorded the applicant's claim that his father was the legal owner of all the family properties in Bangladesh, although the applicant would inherit 50 per cent when his father died. He claimed that his father had given him power of attorney to act on his behalf. The Tribunal referred in several places to the applicant's family losing its properties. It is apparent that the Tribunal's reference to “ownership rights” in part of its findings and reasons must be read in light of the Tribunal's clear understanding that the properties were family properties.
In any event, even if the Tribunal comment were read literally and taken as indicating that the applicant still had “ownership” rights as distinct from a right of access to and use of the property, it has not been established that this would amount to any more than a wrong finding of fact and not a jurisdictional error.
The fourth ground is that the Tribunal did not put to the applicant for comment adverse information which was the reason or part of the reason to reject his claim under s.424A of the Migration Act. This ground is not particularised. I asked the applicant what the information was that was not put to him under s.424A. He raised the issue of whether he had ownership of properties and claimed the Tribunal thought he had rights of ownership. However it was not necessary for the Tribunal to put the claims made by the applicant at the hearing or the Tribunal's preliminary reasoning to the applicant under s.424A of the Migration Act. It has not been established that the Tribunal failed to comply with s.424A in the manner contended for by the applicant.
The fifth ground is that the Tribunal made a jurisdictional error in that the applicant was facing a fear of harm because of his religious minority group where the dominant religious group had the same attitude everywhere in the country and the fear for harm arose due to Hindus having some valuable property.
Insofar as this ground seeks merits review, as I endeavoured to explain to the applicants, merits review is not available in this Court. This ground appears to take issue with the Tribunal findings in relation to the situation of Hindus generally in Bangladesh. If there is a suggestion that the Tribunal failed to consider such claims that is contrary to the Tribunal reasons for decision from which it is clear that it considered those claims, but found that the applicant did not have a well-founded fear of harm on this basis for the reasons that it gave. In particular, it concluded that he had not suffered serious harm in the past because of his Hindu religion and that there was not a real chance of serious harm in the future, notwithstanding that the Tribunal acknowledged that the applicant's family and other Hindus in Bangladesh had been dispossessed of some land and that there was a nexus with their religion. Such conclusion did not compel a conclusion that the applicant had a well-founded fear of persecution in the future. This ground is not made out.
The final ground in the application is that the Tribunal made a jurisdictional error in that it asked the applicant to relocate to a different country where he was not a citizen and did not know the language and where he did not have any property or financial support. It emerged in oral submissions that the applicant took issue with the fact that the Tribunal raised with him in the hearing the possibility of relocation to India, as his wife was an Indian citizen. It is the case that after having discussed relocation within Bangladesh the Tribunal recorded that it asked the applicant if he could live in India as his wife was an Indian citizen. The applicant stated that he could not do so, as his stepson was stabbed there, the person responsible had not been located, the family would be at risk and his wife's family home was in Goa and she did not want to move to where her son lived as there was nothing there. He also stated that as a Bangladeshi citizen under the Indian Constitution he could not obtain the right to live in India.
However it is apparent from the Tribunal's findings and reasons that it did not make any findings in relation to whether or not the applicant could relocate to India. As indicated above, it found first that it was not satisfied that the applicant had been subjected to serious harm or that there was a real chance he would be persecuted if he returned to Bangladesh. In the alternative it made a finding that the applicant could reasonably be expected to relocate within Bangladesh as the harm he claimed to fear was localised.
It has not been suggested, nor is it apparent on the material before the Court, that the Tribunal failed to consider the obstacles to relocation and the practical realities of relocation within Bangladesh in light of the factors raised by the applicant in the course of the review and the hearing. On the contrary, the Tribunal reasons for decision record a discussion of the applicant's claims in relation to why he could not relocate within Bangladesh and issues put to him in the course of the hearing.
The Tribunal considered these issues and found that relocation within Bangladesh was a safe and reasonable option for the applicant if he did not wish to return to his family home. I note that this ground does not appear to take issue with the findings that the Tribunal made in relation to relocation within India by the applicant's wife.
The Tribunal's remark that there was no specific evidence that the applicant spouse would be unable to live in Bangladesh for a Convention reason was a comment on the evidence and not a finding that the applicant wife did not have a well-founded fear of persecution because she could relocate to Bangladesh. It is apparent from the Tribunal decision as a whole that the Tribunal made its decision in relation to the applicant wife on the basis of consideration of the situation in and relocation within India, before turning back to the position of the primary applicant in finding that it was not satisfied that he had a well-founded fear of persecution in Bangladesh.
It is also apparent that, insofar as his wife’s situation may have been intended to be raised by the applicant husband as a reason why he would not be able to relocate within Bangladesh, the Tribunal had regard to the absence of any specific evidence to the effect that the applicant spouse would be unable to live in Bangladesh for a Convention reason.
More generally, the applicant claimed that there was a lack of fairness in the Tribunal approach and decision. I note the operation of s.422B of the Act. It has not been established there was any failure by the Tribunal comply with the procedural obligations under the Migration Act, in particular the obligation in ss.425 and 424A.
As no jurisdictional error has been established the application must be dismissed. Before I make the orders I will hear submissions in relation to costs.
The applicants have been unsuccessful and there is nothing in circumstances of the present case to warrant a departure from the normal principle that the unsuccessful applicants should meet the costs of the first respondent. The applicant has indicated that he intends to appeal. Of course that is a course of action that is open to him but it does not mean that it is not appropriate at this stage to make an order for costs.
In light of the nature of this and other similar matters, I consider that this is not a case in which it is appropriate to make an order for the amount provided in the Schedule to the Federal Magistrates Court Rules. An appropriate amount of costs in these proceedings is the sum of $4,500, notwithstanding the involvement of counsel for the first respondent.

I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 21 May 2009