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MIGRATION - Review of RRT decision - where applicant filed submissions prepared by a migration agent - where those submissions did not relate to the applicants individual claims - where application for protection initially on basis of well-founded fear of persecution for reasons of political opinion - where following his winning lotto the applicant's fear of persecution was on basis of his membership of a particular social group namely "wealthy persons in Bangladesh" - where applicant claims Tribunal made an error of law but does not particularise the claim - whether Tribunal obliged to investigate applicant's claims - where applicant misunderstanding the role of the Court on review in requesting he be granted a visa.

SZAUT v Minister for Immigration [2004] FMCA 637 (17 September 2004)

SZAUT v Minister for Immigration [2004] FMCA 637 (17 September 2004)
Last Updated: 22 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAUT v MINISTER FOR IMMIGRATION
[2004] FMCA 637




MIGRATION - Review of RRT decision - where applicant filed submissions prepared by a migration agent - where those submissions did not relate to the applicants individual claims - where application for protection initially on basis of well-founded fear of persecution for reasons of political opinion - where following his winning lotto the applicant's fear of persecution was on basis of his membership of a particular social group namely "wealthy persons in Bangladesh" - where applicant claims Tribunal made an error of law but does not particularise the claim - whether Tribunal obliged to investigate applicant's claims - where applicant misunderstanding the role of the Court on review in requesting he be granted a visa.




Migration Act 1958 (Cth), s.422B

Federal Court Rules 1977

Federal Magistrates Court Rules 2001

Muin v Refugee Review Tribunal (2002) 76 ALJR 966

Plaintiff S157/2003 v Commonwealth (2003) 211 CLR 476.

Applicant S341/2003 v MIMIA (2004) FCA 168

Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437

Applicant:
SZAUT




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ 1128 of 2003




Delivered on:


17 September 2004




Delivered at:


Sydney




Hearing date:


17 September 2004




Judgment of:


Raphael FM




REPRESENTATION

Counsel for the Applicant:


Applicant in Person




Counsel for the Respondent:


Ms M Allars




Solicitors for the Respondent:


Sparke Helmore




ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,250 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ 1128 of 2003

SZAUT



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh. He arrived in Australia on 16 March 1996. On 4 April 1996 he lodged an application for a protection visa, but he withdrew this and made a subclass 126 visa application [CB 64]. On 1 October 2002 he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.

2. On 15 November 2002 a delegate of the Minister refused to grant a protection visa and on 27 November 2002 the applicant applied for a review of that decision. A review was heard by the Refugee Review Tribunal on 19 May 2003. On 20 May 2003 the Tribunal determined to affirm the decision not to grant a protection visa and it handed down that decision on 12 June 2003.

3. The applicant seeks review from this Court of the decision of the Tribunal. He claims in his application dated 20 June 2003:


1. I strongly believe that the Tribunal did never look my matter correctly. Therefore they made "error of law" by not taking my application positively.

2. I also believe that Tribunal was not fair with me and they made the same decision as DIMIA.

3. In fact the Tribunal did not investigate my claim and never ever take into account my evidence.

4. In a document filed on 31 August 2004, which the applicant tells me was prepared for him by a migration agent known as Mr Moore, who lives in Mascot, the applicant makes a claim of actual bias on the part of the Tribunal in a manner which would be familiar to any judicial officer who has dealt with a number of applications of this type. The document then goes on to make reference to the decision of the High Court in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 and provides an interesting discussion of the privative clause provisions of the Act, with reference to Plaintiff S157/2003 v Commonwealth (2003) 211 CLR 476.

5. The claim which the applicant first made when applying for a protection visa related to his association with the Jamat-E-Islami party, a group with which he apparently had some problems which led to him leaving Bangladesh and going to work in Saudi Arabia. However, at his interview with the Tribunal he gave the Tribunal a different reason for seeking protection from Australia. He told the Tribunal that in May 1997 he had the good fortune to be part of a syndicate which won $3 million in the lotto. His personal share was $150,000. He told the Tribunal news of his win had reached Bangladesh where it was being suggested that he had won the full $3 million and not just a one-twentieth share of it. He claims that as a result he was considered to be a wealthy man and threats of extortion were being made to his relatives.

6. Between [CB 66] - [CB 67] the Tribunal sets out the applicant's claims in relation to his political convictions. But the Tribunal noted at [CB 70] that the applicant said that he is not now claiming that he had political problems in Bangladesh. This statement the Tribunal accepted. The Tribunal came to a number of factual conclusions. Firstly, it did not accept that the applicant was a member of Jamat-E-Islami party or that a political opinion relating to that party would be imputed to him. It decided this on the basis of the applicant's responses to questions about the party, which the Tribunal did not find satisfactory. It followed that the Tribunal could not accept the applicant's assertion that the police would not protect him because of his membership of that party if he was of that party.

7. The applicant then made the assertion that he belonged to the particular social group of wealthy persons in Bangladesh. But in regard to that the Tribunal said:


"The Tribunal finds that if he had a well-founded fear of serious harm on this basis, he would have applied for a protection visa shortly after winning Lotto. But I accept that he did not do so, and further find that this draws his claim of fear of serious harm amounted to persecution into question."

8. The Tribunal also found as a fact that any demands for money or extortion threats that the applicant and his family may receive would be the result of criminal activity. At [CB71] the Tribunal indicated that it would be reasonable for the applicant to return to another part of Bangladesh where it was satisfied that his Lotto success would not be known.

9. It seems to me that all the findings of fact to which I have referred are findings which were quite within the power of the Tribunal to make from the evidence before it.

10. Dealing now with the grounds of review, I note that in respect of the alleged error of law, this has not been particularised. To assert that the Tribunal did not look at a matter correctly and therefore made an error of law, is to provide no assistance to a court in making a decision as to whether or not jurisdictional error could be found. I do not think it is either for myself or for the respondent to try and suggest errors of law that the applicant might be thinking about if he does not himself provide that information.

11. The failure to provide procedural fairness is a matter which is governed by the new section 422B(1) of the Migration Act. This provides that Part 7 of the Act is to be taken as an exhaustive statement of the requirements of procedural fairness in relation to the matters with which it deals. The applicant can therefore no longer argue that he was denied common law procedural fairness and he has certainly not set out any grounds upon which he says he was denied the formal procedural fairness allowed by those sections. Ms Allars, in her helpful written submission, suggested that the applicant might be alleging that his case falls within the parameters discussed by the High Court in Muin v Refugee Review Tribunal (2002) 76 ALJR 966. But if he is, he has certainly not provided the Court with any evidence that the factual matters found necessary by the High Court to assert the alleged procedural unfairness, exist.

12. Finally, the applicant claims that his case was not investigated. Once again, there are no particulars. I note that in Applicant S341/2003 v MIMIA (2004) FCA 168 the Federal Court said at [8]:

"The Tribunal is not required to initiate additional inquiries beyond the material presented by the applicant (see Applicant S (2002) 124 FCR 256 of 257 at [1] per Whitlam J, 275 at [74] per Stone J, North J dissenting; Randhawa (1994) 52 FCR 437 at 443 and 451; Selvaduari (2000) FCA 1536 at [13])."

13. In Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 at [57] - [58] Gummow and Heydon JJ, with whom Gleeson CJ agreed, held that it was not for the Tribunal to cross-examine or press an applicant for additional evidence or further submissions.

14. Finally, the claim of bias was not particularised as was required by Order 54 rule 2 of the Federal Court Rules and I am not prepared to deal with that claim without those particulars.

15. The applicant in his oral submissions, asked me to give him a chance to do business in this country and then to leave and go to another one. He advised that he feared for his life if he returned to Bangladesh and pointed out that he had a craft certificate in cookery. These are not matters which the Court can take into account in deciding whether or not a decision of the Refugee Review Tribunal is open to review and I am unable to assist the applicant on this basis.

16. I am unable to find in the Tribunal's reasons for decision any grounds from which the applicant can properly allege a jurisdictional error. I dismiss the 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 Magistrates Court rules.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 23 September 2004
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