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MIGRATION - Review of RRT decision - where applicant joined Muin and Lie class action before lodging application for review in FMCA - where applicant claims to have a well-founded fear of persecution for reason of political opinion - where Tribunal did not consider the applicant to be a credible witness - where applicant claims his case is identical to Muin and Lie - where no evidence was presented to substantiate this claim - whether the Tribunal decision evidences a denial of procedural fairness - where applicant essentially seeking merits review - whether s.424A required the applicant to have been provided with particulars of information that formed part of the Tribunal's reasons for decision, namely that political violence in Bangladesh had subsided.

SZAXU v Minister for Immigration [2004] FMCA 775 (28 October 2004)

SZAXU v Minister for Immigration [2004] FMCA 775 (28 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAXU v MINISTER FOR IMMIGRATION
[2004] FMCA 775




MIGRATION - Review of RRT decision - where applicant joined Muin and Lie class action before lodging application for review in FMCA - where applicant claims to have a well-founded fear of persecution for reason of political opinion - where Tribunal did not consider the applicant to be a credible witness - where applicant claims his case is identical to Muin and Lie - where no evidence was presented to substantiate this claim - whether the Tribunal decision evidences a denial of procedural fairness - where applicant essentially seeking merits review - whether s.424A required the applicant to have been provided with particulars of information that formed part of the Tribunal's reasons for decision, namely that political violence in Bangladesh had subsided.




Migration act 1958 (Cth), s.424A

Federal Magistrates Court Rules 2001

Muin v RRT (2002) 190 ALR 601

NADR of 2001 v MIMA [2002] FCAFC 293

Applicant:
SZAXU




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ 1306 of 2003




Delivered on:


28 October 2004




Delivered at:


Sydney




Hearing date:


28 October 2004




Judgment of:


Raphael FM




REPRESENTATION

For the Applicant:


Applicant in person




Counsel for the Respondent:


Mr S Lloyd




Solicitors for the Respondent:


Clayton Utz




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 Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG 1306 of 2003

SZAXU



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

25 August 1998. On 22 September 1998 he lodged an application for a protection (class AZ) visa with the Department of Immigration and Multicultural Affairs. On 6 November 1998 a delegate of the Minister refused to grant him a protection visa and on 4 December 1998 he applied for a review of that decision in the Refugee Review Tribunal. On 24 March 2000 the Tribunal wrote to the applicant informing him that it had looked at the material relating to his application and was not prepared to make a favourable decision on that evidence alone. He was invited to a hearing.

2. The applicant attended the hearing together with his adviser. On

29 May 2000, the Tribunal determined to affirm the decision not to grant a protection visa and it handed down that decision on 20 June 2000. It would appear that thereafter the applicant joined what is known colloquially as the Muin and Lie class action. That appears to have availed him nought because on 10 July 2003 he filed an application under the Judiciary Act and the Migration Act in this Court. On 5 January 2004, he filed an amended application.

3. The applicant provided the Tribunal with a statement. He attended the hearing with a witness and his migration agent. The facts obtained by the Tribunal were that the applicant had been a long time resident of Dacca who became interested in politics at the time of the Bangladeshi war of independence and who joined the BNP where he claimed to have become reasonably prominent. In 1988, allegedly because of his association with the BNP, he left Bangladesh and set up a business in the United Arab Emirates. He told the Tribunal that he was very successful in this business and that had allowed him to send large sums of money to the BNP. He came back to Bangladesh irregularly for short periods and returned finally in April 1998.

4. He did not claim to have suffered any harm or persecution prior to his return. However, at that time the Awami League was in power and he claimed to have been harassed by false charges from his political enemies. In August 1998, he left the country using someone else's passport and arrived in Australia. The Tribunal took the view that in his initial statement the applicant had been very vague in providing details of Convention related persecution. Although some further details were provided at the interview, the Tribunal came to the conclusion that these had been fabricated. The Tribunal was unimpressed with the witness provided by the applicant, who seemed to know very little about him, or at least about his activities in Bangladesh. At [CB 101] - [CB 102] the Tribunal said:

"At the Tribunal hearing the applicant claimed that he faced no problems of a Convention nature until June 1998, three months prior to his departure from Bangladesh.

Despite his claims to have been an active member of the BNP, he continued to live outside Bangladesh throughout the period of BNP rule (1991 - 1996) when he could have enjoyed the benefits of his claimed close association and membership of the party.

In fact he could not have been, nor does he claim to have been, directly involved in any political activities since 1988 when he left Bangladesh.

The applicant's lack of any significant political profile for ten years and his absence from the country for that period of time leads me to find that he poses no political threat to anyone in Bangladesh and he would not be of interest to the Awami League such that he would be targeted by them or at risk of persecution.

Neither do I accept that he is of interest to them for reasons of his failure to donate to them. By his own account he was not confronted by them and I find that they were in a position to locate him if they wanted to.

...

I reject his account to have been harassed by having false charges made against him and to have had his property in Bangladesh confiscated by the Awami League.

I find that any profile he had in Bangladesh is of no significance currently. He has not been involved in politics for at least ten years and through three different governments.

While I doubt that any claimed fear for a Convention reason on the part of the applicant is genuine, I find there is no well founded basis to it in any event. Accordingly, the applicant is not a refugee."

5. It seems to me that these findings by the Tribunal were open to it on the evidence presented and the lack of any substantiation of the allegations made by the applicant and I must now deal with his case. The first ground of his amended application is that the Tribunal did not follow the proper procedures and reference was made to the Muin and Lie cases. He also refers to them in the second ground. Whilst providing important jurisprudence upon the subject of procedural fairness they are cases that were decided very much upon their facts and that those facts were, in fact, agreed by the respondent, who has never repeated that process. The situation in cases which followed Muin and Lie is best summed up in the decision of the full bench of the Federal Court in NADR of 2001 v MIMA [2002] FCAFC 293 where the requirement for proof of the matters agreed in Muin and Lie was made clear in the judgment of Kiefel J.

6. It is not enough for an applicant to come to this court and say that his case is identical with Muin and Lie without showing how it is identical, what documents were not read and what documents he had been told had been read. The applicant must also say how that has affected him and what he might have done if he had known of the alleged failures. This applicant has done none of that. His inability so to do is heightened by the fact that he was once a member of the very class action in which those matters were decided and yet he was unsuccessful.

7. The reference to Muin and Lie continues into paragraph 4 of the applicant's submissions. In paragraph 5 he states that the Tribunal exceeded its jurisdiction by failing to accord him procedural fairness as required under section 424A(1). Mr Lloyd, in his helpful written submissions, suggests that what the applicant means by this is that the Tribunal failed to give the applicant details of information which it had, namely that violence against BNP leaders and workers had subsided. Mr Lloyd, like myself, has read the court book and neither of us are able to find any reference to this matter therein. It may be that the applicant found assistance in an application written for some other person.

8. In paragraph 6 of the amended application the applicant says that the Tribunal did not complete the exercise of its jurisdiction because it made no findings as to what socio-political changes might occur in Bangladesh in the reasonably foreseeable future and thus failed to assess whether the applicant's fears of being persecuted for being a member of a political party were well founded in the reasonably foreseeable future. At [CB 89] the Tribunal says:

"Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matters in relation to the reasonably foreseeable future."

9. It is clear from that statement that the Tribunal was aware of its obligations in this regard but the fact is that there was no evidence before the Tribunal at the time it heard the case that there were to be any socio-political changes in Bangladesh in the future. It was not as if the applicant had suggested an even more extreme form of government than that run by the Awami League might be in power. Further, the effect of the Tribunal's decision was to make a finding of fact that the applicant was not a political participant of any significance. Under those circumstances it was really unnecessary for it to gaze far into the future to see whether or not this very low profile could become of concern.

10. The next claim was that the Tribunal's decision was not based upon a rational foundation. I have already said that a reading of the decision itself makes it clear that this is not a claim that can be substantiated. But in any event would seem to me to be based upon a desire to re-agitate matters that were already decided and were within the purview of the Tribunal. It is no more than an attempt at merits review.

11. The final matter relates to an alleged failure by the Tribunal to provide the applicant with particulars of information that form part of the reasons for the Tribunal's decision. This information is that violence against BNP leaders and workers had subsided. The applicant argues that this is not information which is just about a class of persons and therefore is exempt from the strictures of s.424A by the proviso in section 424A(3). Both Mr Lloyd and myself have looked carefully through the green book and we are unable to find any reference to the fact that violence against BNP leaders and workers had subsided, although this is not to say that it cannot be found in the small print of some of the extracts of country information provided.

12. The real vice in this ground is that it does not seem to form any part of the Tribunal's decision which, to my mind, was based upon the Tribunal's view of the applicant's credibility and its conclusion that he was not of any political significance. In those circumstances, there are no grounds that I can find upon which the applicant can successfully seek review of this decision. I dismiss the application and 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 twelve (12) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 8 November 2004

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