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MIGRATION - Review of the Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming political persecution in Bangladesh - no reviewable error disclosed - application dismissed.

SZAYM v Minister for Immigration [2004] FMCA 724 (4 November 2004)

SZAYM v Minister for Immigration [2004] FMCA 724 (4 November 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYM v MINISTER FOR IMMIGRATION
[2004] FMCA 724




MIGRATION - Review of the Refugee Review Tribunal decision - refusal of a protection visa - applicant claiming political persecution in Bangladesh - no reviewable error disclosed - application dismissed.




Migration Act 1958 (Cth), s.424

Applicant:
SZAYM




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1357 of 2003




Delivered on:


4 November 2004




Delivered at:


Sydney




Hearing date:


4 November 2004




Judgment of:


Driver FM




REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:


Mr T Reilly




Solicitors for the Respondent:


Ms A Nesbitt




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $4,000

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1357 of 2003

SZAYM



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 16 June 2003 and handed down on 10 July 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant made claims of political persecution in Bangladesh. Mr Reilly sets out the relevant background facts and circumstances in paragraphs 2-4 of his written submissions. I adopt those paragraphs for the purposes of this judgment:

The applicant applied for the visa on 24 October 2001: court book, pages 1-30. On 17 January 2002 the delegate wrote to the applicant inviting his comment on country information: court book, pages 31-32, but the applicant did not respond: court book, page 38.9. The delegate's decision refusing the visa was made on 26 February 2002: court book, pages 33-41. The applicant applied to the RRT for review on 14 March 2002: court book, pages 42-45. The RRT held a hearing on 22 May 2003: court book, page 80.

The applicant claimed to fear persecution in Bangladesh for reason of his political opinion. He claimed to be a prominent member of the Awami League (AL) and to fear harm from members of the rival Bangladesh National Party (BNP). He claimed to have supported local AL candidates in the 1996 and 2001 elections and to have been threatened and subjected to false charges by BNP supporters and that his house was bombed in 1999. He claimed that he did not feel safe in Bangladesh. See generally court book, pages 25-30, 49-53, 121-127.

The RRT accepted that the applicant was a AL member and assisted in the 1996 election, but not that he was of the prominence that he claimed, nor that he had a prominent role in the 2001 election. The RRT did not accept that the applicant had been targeted by the BNP as he claimed, or that his house was bombed in 1999, noting the vague nature of these claims and the self-contradictory documentary evidence the applicant submitted in support. Nor did the RRT accept that the applicant was subject to false charges, again noting the vague nature of these claims and their inconsistence with the applicant's ability to enter and depart from Bangladesh at times the alleged charges would have been pending. Having regard to independent country information the RRT concluded that the applicant could resume his political activity in Bangladesh without fear of harm, and if he did fear harm in his local area it was reasonable for him to relocate. See generally court book, pages 135-139.

2. The applicant for judicial review filed on 16 July 2003 purports to raise six grounds. None of the grounds are particularised. Of the grounds listed, the only obvious assertion of jurisdictional error is the assertion of a breach of the rules of natural justice. Grounds 5 and 6 could not be grounds of judicial review on any basis. The applicant prepared written submissions which were filed on 2 November 2004. He told me that these were prepared with the assistance of his migration agent. They certainly bear a strong similarity to written submissions that have been prepared in some other matters. The applicant told me that he paid no money for the submissions. That is well because they are of very little assistance to him.

3. In his submissions, the applicant asserts a lack of procedural fairness or natural justice. The assertion is made twice both in relation to an alleged failure to give an opportunity arising from the general law to comment upon country information or an alleged breach of s.424(1) of the Migration Act 1958 (Cth). There is no evidence to support the assertion. On the contrary, on page 127 of the court book, the presiding member asserts that the RRT discussed relevant country information with the applicant. I find that there is no substance to the asserted breach of natural justice or procedural fairness. Neither was s.424(1) breached. The submissions also assert that the RRT did not act in a bona fide manner. Later the submissions assert bad faith. The only material advanced in support of those serious allegations is that the RRT made a decision which is not to the applicant's liking. There is obviously no substance to either allegation. There is a generalised allegation of a failure to follow proper procedures but this is not particularised. In the absence of particulars, there is no substance to the allegation. There is nothing else in the written submissions that point to any jurisdictional error. On my own reading of the decision of the RRT, I am unable to identify any jurisdictional error.

4. The applicant asked that the matter be returned to the RRT in any event. However, as I explained to him, that relief depends upon a finding of jurisdictional error and there is none.

5. The decision of the RRT is a privative clause decision. I must and will dismiss the application.

6. On the question of costs, Mr Reilly seeks an order for costs fixed in the sum of $4,000 on a party/party basis. The applicant referred to his impecuniosity but as I have repeatedly stated in proceedings of this nature, that is not a reason for the Court to refrain from making a costs order. I am satisfied that it was reasonable for the Minister to be represented by counsel and an instructing solicitor in today's proceeding. Taking that into account and the amount of preparation done on behalf of the Minister, I am satisfied that costs of the order of $4,000 have been reasonably and properly incurred on a party/party basis.

7. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,000.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 12 November 2004
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