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MIGRATION - Protection visa - no ground for review of Refugee Review Tribunal decision.

SZAWU v Minister for Immigration [2004] FMCA 562 (27 August 2004)

SZAWU v Minister for Immigration [2004] FMCA 562 (27 August 2004)
Last Updated: 20 September 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAWU v MINISTER FOR IMMIGRATION
[2004] FMCA 562



MIGRATION - Protection visa - no ground for review of Refugee Review Tribunal decision.



Migration Act 1958 (Cth)

Administrative Decisions (Judicial Review) Act 1997 (Cth)

Judiciary Act 1903 (Cth), s.39B

Applicant:
SZAWU



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ1203 of 2003



Delivered on:


27 August 2004



Delivered at:


Sydney



Hearing date:


27 August 2004



Judgment of:


Smith FM



REPRESENTATION

Counsel for the Applicant:


Applicant in person



Solicitors for the Applicant:


None



Counsel for the Respondent:


Mr Dean Jordan



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the amount of $4000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ1203 of 2003

SZAWU


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application invoking the court's jurisdiction under section 483A of the Migration Act 1958 (Cth). That jurisdiction gives the court `the same jurisdiction as the Federal Court in relation to a matter arising under this Act'.

2. The effect of that conferral of jurisdiction is that the court entertains applications for judicial review under the Administrative Decisions (Judicial Review) Act 1997 (Cth) and section 39B of the Judiciary Act 1903 (Cth) as qualified by the provisions of Part 8 of the Migration Act as interpreted by decisions of the High Court. In the circumstances of the present case I do not need to investigate that jurisdiction further.

3. The application seeks to set aside a decision of the Refugee Review Tribunal dated 7 May 2003 and handed down on 4 June 2003 in which the Tribunal affirmed a decision refusing to grant a protection visa to the applicant. The Refugee Review Tribunal summarised the applicant's claims for refugee status as follows:

CLAIMS AND EVIDENCE

The Tribunal has before it the Department's file, which includes the protection visa application and the delegate's decision record. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.

The substance of the applicant's original written submission was read to him at the hearing. Subsequently, the applicant made a number of alterations and additions during his oral evidence to the Tribunal on Monday 24 February 2003.

The applicant submitted that he is a 43 year old married male Moslem Bangladeshi. His wife and one son are in Bangladesh. He stated that he owns an electronics retail business which is being operated by his brother and a manager. The applicant claimed that his family have a long history in the Bangladesh Nationalist Party (BNP) and he commenced active politics during the 1990's and was mentored by various senior party personalities including Ministers and MPs. He served as a Vice-President of a ward branch from 1998 until his replacement after leaving for Australia.

He was involved in organising meetings and demonstrations against the then Awami League (AL) Government and its supporting "terrorist" groups aligned with the Party. Because of his active opposition to the AL he was targeted for attacks and in January 2000 a "false" charge of murder of an "unknown" man, allegedly an AL worker, was filed with the police against him. The applicant heard that the police were seeking to arrest him under Section 54 of the Criminal Procedure Act and also under the SPA, which allows for persons to be detained on suspicion of criminal activity without an arrest warrant. The applicant claimed that he went into hiding.

Subsequently, the applicant's house was attacked and ransacked. As a result, two AL supporters were severely injured and crippled in a "counter attack". The AL supporters responded in kind and some BNP supporters were wounded in the cross-fire. Further cases of "harassment" were filed with the police against the applicant by the AL. As a prominent businessman he was accused of patronising these attacks. In October 2000 another "false" charge under the Public Safety Law was filed against the applicant.

He moved to Dhaka to avoid the threats to kill him by AL supporters who continued to harass him. The applicant continued to organise processions against the AL Government during November 2000. They were attacked by AL "terrorists" and the applicant was among the wounded. The applicant's statement noted that "I went to the local police station to file a general diary (GD) but they refused to take my complaint". The applicant claimed that the Police Force in Bangladesh is totally under Awami League control.

In January 2001 a party meeting which he was attending was attacked by the Awami League supporters. They also attacked his home at Banial East Bagarchar, Mohespur and burnt it down. Family members were injured. The applicant claimed that AL members were seeking to kill him and continued to attack his supporters. In January 2001 they banned his political activities at Demra and Munshiganj. The applicant went into hiding in Dhaka between March 2000 and January 2001, to avoid the "death risk and persecution".

The applicant decided to leave Bangladesh and obtained a tourist visa from the Australian High Commission and arrived in Australia on 8 February 2001. The applicant claimed in his statement that after arriving in Australia he was informed that the Munshiganj police and AL supporters had visited his home and asked his parents about his whereabouts.

In his evidence before the Tribunal, the applicant confirmed the substance of his earlier written submission. In addition, he told the Tribunal that during 2000 he travelled extensively, twice to India and once to Nepal on business, but also to avoid the Bangladesh police, from whom he was hiding at the time. He subsequently returned to Bangladesh by land and passed through the border with his valid passport without difficulty.

The applicant fears that if he returns to Bangladesh he will be arrested under the Special Powers Act (SPA) and that his life will be in danger.

4. The Tribunal addressed those claims under a heading "FINDINGS AND REASONS". It accepted some aspects of the applicant's claims, but in relation to his account of more serious incidents, and in particular incidents alleging an involvement or condoning by government agencies, the Tribunal refused to accept them and set out its reasons for refusing to accept the claims.

5. I have examined the Tribunal's reasons and the material that was before the Tribunal to the extent that it is reproduced in the Green Book, and have formed the conclusion that it was open to the Tribunal to make the factual findings that it did. It was open to the Tribunal as a matter of law to reject claims, or not to accept claims, as to what had happened to the applicant and it was in my view open to the Tribunal not to be satisfied on that material that the applicant at the time of its decision had a well founded fear of persecution for reason of his political opinion.

6. The Tribunal's opinion in that respect was based not only on its inability to accept the truth of the factual assertions but also by reason of the fact that the political party, to which the applicant was affiliated at the time of the alleged harassment and other actions by a party affiliated with the then government, had changed and the current party in government was the party to which the applicant claimed to have been affiliated. When this particular point was put to the applicant by the Tribunal he suggested that he had been dismissed by the party now in power, but the Tribunal declined to accept that assertion as a reason why he still would fear persecution. In my view, it was once again open to the Tribunal to form that view as to the applicant's position in relation to the current government structures in Bangladesh.

7. The application to this court contained no particulars of ten very broadly expressed grounds of review, and I see no purpose in going through them in these reasons since they were not elaborated in any real respect orally in the course of today's hearing, and no documentary submission or further particulars have been put forward in support of these grounds by or on behalf of the applicant.

8. The applicant's submissions today to me made three propositions:

a) That he was a genuine refugee, with an implicit submission that I should make a finding of fact that he is a refugee;

b) That he had been unable to get sufficient legal help to help him present a legal attack on the Refugee Review Tribunal's decision today; and

c) That his prospects if the matter was returned to the Tribunal were good because he would be able to obtain more information and would have a hearing by a different member.

9. Unfortunately, none of those three reasons are reasons which allow me to give the order he wants today:

a) It is no part of the role of this court to decide whether people are or are not refugees. That is a role that our law gives to the Refugee Review Tribunal as the final determinant.

b) Unfortunate as it may be that he has not been able to employ lawyers to appear today, the matter has been set down for hearing today with ample notice to the applicant and a decision has to be made today on whether legal errors can be found in the decision of the Tribunal. The applicant has had access to the Court's legal advice scheme, and neither Mr Jordan, appearing for the Minister, nor I have seen any point which from our respective positions we believe requires serious attention by the court. If this submission carried an implicit request for an adjournment, I would refuse it.

c) In relation to the third point, the Migration Act allows a person one right of appeal to the Refugee Review Tribunal and not two, and the applicant has had his opportunity in front of the Refugee Review Tribunal. My power to remit to a second hearing is conditioned on my being satisfied that the first Tribunal did not exercise its jurisdiction. As I have indicated, I have not reached that conclusion.

10. I therefore dismiss the application.

RECORDED : NOT TRANSCRIBED

11. I think it is appropriate for me to order that the applicant pay the respondent's costs in the sum of $4000 and I make that order.

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

Associate: L Khaw

Date: 7 September 2004
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