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1 The appellant, a citizen of Bangladesh, appeals to this Court against a decision of a judge of this Court dismissing his application for judicial review of a decision of the Refugee Review Tribunal refusing the grant of a protection visa.

SPBB v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

SPBB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 137 (13 May 2004)
Last Updated: 24 May 2004

FEDERAL COURT OF AUSTRALIA


SPBB v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 137































SPBB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No S 812 of 2003





BRANSON, FINN & FINKELSTEIN JJ
ADELAIDE
13 MAY 2004


IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S812 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


BETWEEN: SPBB
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: BRANSON, FINN & FINKELSTEIN JJ
DATE OF ORDER: 13 MAY 2004
WHERE MADE: ADELAIDE


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

SOUTH AUSTRALIA DISTRICT REGISTRY S 812 OF 2003


ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA


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


JUDGES: BRANSON, FINN & FINKELSTEIN JJ
DATE: 13 MAY 2004
PLACE: ADELAIDE


REASONS FOR JUDGMENT

THE COURT:

1 The appellant, a citizen of Bangladesh, appeals to this Court against a decision of a judge of this Court dismissing his application for judicial review of a decision of the Refugee Review Tribunal refusing the grant of a protection visa.

2 The handwritten notice of appeal simply asserts that:

(i) the Tribunal applied the incorrect test or asked itself the incorrect question as to the appellant�s fear of persecution; and
(ii) the Tribunal failed to exercise its duty placed upon it by s 414(1) of the Migration Act 1958 (Cth).
3 The appellant failed to provide any written submissions in support of his appeal, and the brief oral submissions he made � he was self-represented � did no more than address matters going to the merits. We would note, though, that the appellant referred to certain documents that he wished to place before the Tribunal, but was apparently not able to do so because he was unable to get them translated in time. As to that, we note, first, that no point was made by the counsel who appeared for the now appellant before the primary judge with respect to this issue and, second, that the documents apparently relate to an issue in which the Tribunal�s finding was to accept the case put by the appellant on this issue and therefore the documents had no relevance.

4 We have examined both the Tribunal�s and the primary judge�s decision while recognising in the latter case that his Honour was assisted by the appellant�s then having legal representation.

5 The twin bases upon which the appellant claimed he was a refugee were conveniently summarised in two paragraphs of the primary judge�s reasons:

"There were two bases upon which the applicant claimed that he was a refugee. The first was that he was persecuted for political reasons whilst he was a student at Dhaka College between December, 1997 and December, 2000. He claimed that there were two political groupings to which the majority of students belonged � the Bangladesh Nationalist Party (BNP) and the Awami League. He claimed that he had refused to join either political grouping. Pressure was placed on him by the competing political groupings for him to join them. He claimed that on one occasion he had been threatened by one of the political groups. He also claimed that on another occasion he had been kidnapped by a number of members of the BNP and that he was assaulted by them resulting in a broken finger and thumb. He was then released.

The other basis for the claim was that he was in fear of being attacked by a particular person, Mr Mazbah. The applicant claimed that Mr Mazbah had been involved in the death of the applicant�s uncle in Japan in 1997. The uncle had attended a speech by a member of the Awami League whom the uncle knew, although the uncle himself was not involved in politics. The relevant member was attacked by members of an opposing faction, including Mr Mazbah. The uncle intervened and was killed. At the uncle�s funeral the applicant threatened to kill Mr Mazbah. Subsequently, Mr Mazbah had seen the applicant on the street in the town of Shibchar where Mr Mazbah lived. Mr Mazbah told the applicant that he would harm the applicant if the applicant returned to Shibchar."

6 The appellant characterised the second of those, that is, the claim involving Mr Mazbah - as his "main claim". Both were rejected by the Tribunal. The reasons the first failed were (i) because the Tribunal did not accept that either the Awami League or the BNP were motivated to harm him for political (as distinct from financial) reasons; and (ii) because, as the primary judge correctly inferred from the Tribunal�s description of the appellant�s behaviour, the Tribunal thought the kidnapping allegation was inherently improbable.

7 The appellant�s main claim was rejected because the Tribunal did not accept that Mr Mazbah had determined, or was seriously motivated, to harm the appellant for any reason. In consequence the appellant had no well founded fear of being persecuted by Mr Mazbah.

8 The judicial review proceedings challenged, in substance, whether the Tribunal�s findings were sufficient in law to sustain its ultimate conclusion when considered in the light of the various claims advanced by the appellant. Given both the adverse credibility findings and the findings that were open on the evidence that such fears of harm that the appellant may have had were not well founded (the main claim) or Convention related (the Awami League/BNP claim), the primary judge correctly concluded that the Tribunal�s decision was unimpeachable.

9 We agree with his Honour�s conclusion. No jurisdictional error has been disclosed.

10 The appeal will be dismissed with costs.


I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Finn and Finkelstein.



Associate:

Dated: 19 May 2004



Counsel for the Appellant: The Appellant appeared in person.



Counsel for the Respondent: K Tredrea



Solicitor for the Respondent: Sparke Helmore



Date of Hearing: 13 May 2004



Date of Judgment: 13 May 2004
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