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MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution for reasons for political association - whether there is a reviewable error.

SZACN v Minister for Immigration [2003] FMCA 185 (12 May 2003)

SZACN v Minister for Immigration [2003] FMCA 185 (12 May 2003)
Last Updated: 23 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZACN v MINISTER FOR IMMIGRATION
[2003] FMCA 185



MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution for reasons for political association - whether there is a reviewable error.



SBAJ v Minister for Immigration [2003] FCAFC 67

Applicant:
SZACN



Respondent:


MINISTER FOR IMMIGRATION & MULTICULRAL & INDIGENOUS AFFAIRS



File No:


SZ 1321 of 2002



Delivered on:


12 May 2003



Delivered at:


Sydney



Hearing date:


12 May 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Self Represented



Counsel for the Respondent:


Mr M Wigney



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs in the sum of $4,250.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1321 of 2002

SZACN


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. In this matter the applicant, a citizen of Bangladesh, arrived in Australia on 6 June 2000. On 28 June 2000, he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 30 June 2000 a delegate of the Minister refused to grant him a protection visa and on 12 July 2000 the applicant applied for review of that decision.

2. The review was held by the Refugee Review Tribunal which interviewed the applicant on 29 October 2002 and made its decision on 30 October 2002. The decision, which was to uphold the original decision of the delegate, was handed down on 21 November 2002.

3. The applicant stated that he was a Bangladeshi citizen who travelled to Australia in June 2000 on a passport issued in another person's name. The applicant has now received his own Bangladeshi passport and copies of that document are contained in the court book. The applicant's well-founded fear of persecution for convention reasons is claimed to be his fear of arrest, imprisonment and torture on political grounds. The applicant states that false charges of treason and terrorist activities have been made against him by the Awami League Government in 1996 or 1997. The reason the Awami League Government did that was that the applicant was a member and active participant in the affairs of the Freedom Party.

4. One of the matters advised by the applicant to the Tribunal was that he had been accused of involvement in the murder of Sheik Mujib, which assassination occurred when he was only seven years old.

5. The applicant indicated that he had been able to avoid arrest or capture by the Awami League between the time the false charges were made in 1999 and the time he travelled to Australia in year 2000.

6. The major difficulty that the applicant faced in persuading the Tribunal that he was owed protection obligations by Australia was the fact that the Awami League is no longer in power in Bangladesh. The country is currently being ruled by BNP, which the applicant accepted did not take the same attitude towards members of the Freedom Party as did the Awami League. The Tribunal also pointed out to the applicant that country information in its possession indicated that whilst false charges had been laid against persons by the Awami League Government, the courts of Pakistan had in general thrown those cases out. At [CB 75] the Tribunal set out its main finding as follows:

"I am satisfied that the applicant was active in the Freedom Party. He canvassed door-to-door and argued for their policies in meetings and on the streets. As a result of this he claims that the Awami League government issued serious and false charges against him in 1996 or 1997.

The applicant was able to avoid arrest and managed to leave Bangladesh in 2000, travelling on another man's passport.

I note the country information. The Awami League government has lost power. I can find no evidence that the present government is seeking to harm former or present Freedom Party activists. I note that the applicant himself acknowledges that he is in a different category to the Freedom Party leaders who were arrested and gaoled because of their involvement in the murder of Sheik Mujib. I note that the applicant was able to avoid arrest for some years prior to his departure, even when the Awami League was in power. I note there is evidence that the courts will not readily convict on false charges.

I am not satisfied that there is a real chance that the applicant will be falsely convicted of any charges he may face in Bangladesh.

I am not satisfied that he would be denied a fair trial on any charges he may face. I'm not satisfied that there is as real chance that the applicant will be arrested and mistreated should he return to Bangladesh. I am not satisfied that there is a real chance that the applicant will be persecuted. I am not satisfied that the applicant has a well-founded fear of persecution."

7. The court is of the view that whilst the use of the expression "I am not satisfied" would generally tend to indicate that no finding had been made the context in which the expression was used might indicate that in fact the findings were made, and were clear and that the tribunal has merely used an unfortunate expression. I think that is what has occurred here. (See SBAJ v Minister for Immigration [2003] FCAFC 67 at [12] - [24]).

8. In the context of these reasons for decision there is a clear conclusion that the applicant does not have a well-founded fear of persecution for a convention reason because the Tribunal does not believe that if he returned to Bangladesh he would not be provided with the appropriate protection by the courts from any false charges that might still be existing against him and which might be pressed. This conclusion by the Tribunal was open to it on the evidence.

9. The applicant appeared in person. When I asked him to explain to me in his own words why he believed the Tribunal was in error in the manner in which it came to its decision, he stated that he had no specific things to say but he wished me to look at the papers once again. This indicated that the applicant was proceeding on a misapprehension as to the powers of this court in relation to migration matters. It is not open to this court to substitute its findings on questions of fact for those of the tribunal or, in effect, to re-hear the applicant's case.

10. In those circumstances I did not call upon Mr Wigney who had prepared, in his usual helpful manner, a detailed outline of submissions which I had previously read.

11. I dismiss this application. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrate's Court rules.


I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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