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

PRACTICE AND PROCEDURE - Observations on the relative merits of representation by qualified legal practitioners and migration agents.

SZATU v Minister for Immigration [2004] FMCA 592 (10 September 2004)

SZATU v Minister for Immigration [2004] FMCA 592 (10 September 2004)
Last Updated: 27 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZATU v MINISTER FOR IMMIGRATION
[2004] FMCA 592



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

PRACTICE AND PROCEDURE - Observations on the relative merits of representation by qualified legal practitioners and migration agents.



Migration Act 1958 (Cth), s.424A

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) HCA 30

Applicant:
SZATU



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ1087 of 2003



Delivered on:


10 September 2004



Delivered at:


Sydney



Hearing date:


10 September 2004



Judgment of:


Driver FM



REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:


Mr A McInerney



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) The Court directs that a copy of today's transcript of proceedings be obtained and be referred by the Court to the Migration Agents Registration Authority and the Legal Services Commission for such action as they consider appropriate.

(2) The application is dismissed.

(3) The applicant is to pay the respondent's costs and disbursements of and incidental to the application, fixed in the sum of $3,000.

(4) Both parties have liberty to apply within 28 days for an order that Mr Hoq Mollah pay the costs that the applicant has been ordered to pay.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ1087 of 2003

SZATU


Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(revised from transcript)

1. I have before me an application filed on 16 June 2003 to review a decision of the Refugee Review Tribunal ("the RRT") made on 30 April 2003 and handed down on 22 May 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. The background to that application and the RRT's treatment of it is set out in written submissions prepared on behalf of the Minister by Mr McInerney. I adopt paragraphs 9 to 15 of those written submissions for the purposes of this judgment:

The applicant is a citizen of Bangladesh.

On 14 July 2000, he arrived in Australia.

On 8 August 2000, he lodged an application for a protection visa.

On 18 April 2001, a delegate of the respondent refused to grant a protection visa to him.

On 18 May 2001, the applicant applied to the RRT for a review of that decision.

By letter dated 14 January 2003, the RRT wrote to the applicant and had invited him to give evidence at a hearing of the RRT on 12 March 2003 (court book, pages 63.10-64.1).

On 9 March 2003, the applicant replied to the RRT. He wrote that he did not wish to attend the hearing and gave his consent to the RRT making a decision on the review without taking further action to enable him to appear before it (court book, page 64.2).

2. Mr McInerney deals with the RRT's treatment of the claims made by the applicant in support of his protection visa application in paragraphs 16 to 28 of his written submissions. I agree with those submissions and adopt them:

The applicant claimed to have a history of party political activity since joining the Jatiya Party in 1989. He alleged he was kidnapped in February 1991, attacked in 1992 and targeted as a result of his political involvement with the Jatiya Party in 1996.

As to first of those claims, the RRT did not accept that he was kidnapped and beaten in February 1991 (court book, page 71.7). The medical certificate dated 10 February 1991 relied upon by the applicant stated his then age to be 29 years - his age at the time of applying for protection.

It was open to the RRT to reject this claim for want of credibility.

The second of the applicant's claims was also rejected on a credibility basis.

The RRT did not accept that the applicant that he suffered harm as a result of his political activities in May 1992 (court book, page 71.9).

In any event, as to the applicant's first two claims, the applicant had provided insufficient information to the RRT to enable it to be satisfied as to the injuries he sustained, the identity of the perpetrators and the action taken, if any, to initiate police action against them (court book, page 71.9).

In respect to the applicant's third claim, the RRT was not satisfied as to the credibility of that claim (court book, page 72.1).

Moreover, the applicant had provided insufficient details to enable the RRT to be satisfied as to whether his home had been ransacked, and his family insulted in 1996, as a result of his political activities (court book, page72.2).

As to his fourth and more general claim that he feared harm if he were to return to Bangladesh by reason of his membership of the Jatiya party, the RRT was not satisfied that the applicant had reason to fear persecution from the BNP (court book, page 72.7), or the Awami League (court book, page 726).

No adverse attention had been directed towards him since 1996 (court book, page72.8). He did not leave Bangladesh until July 2000 (court book, page72.8). He had been able to obtain a passport, earn a living and travel to and from Bangladesh on numerous occasions (court book, page 72.8).

It followed, therefore, that the RRT was not satisfied that the applicant had a subjective fear of persecution for the reasons he claimed (court book, page 72.8).

As to the fifth claim made by the applicant that false charges had been laid against him, the RRT was also not satisfied with the veracity of that claim (court book, page 72.10). In any event, the applicant was no longer politically active, there had been a change of Government and those charges were likely to have lapsed or had been struck out (court book, pages 72.10-73.1).

In summary, the applicant's claim failed for want of credibility, and the lack of information he had provided in support of his claims.

3. It is apparent that the applicant's claim failed before the RRT both because his claims lacked sufficient supporting detail to persuade the presiding member of a well-founded fear of persecution and because the claims otherwise were found to lack credibility.

4. It is noteworthy that the applicant declined an invitation to attend the hearing at the RRT. The applicant's response to the hearing invitation sent to him is at page 42 of the court book. I showed that page to the applicant this afternoon. The applicant admitted that the signature appearing on the form is his, but said that he did not understand the significance of the form. He said that his then migration agent, Mr Sirajul Haque, did not explain the form to him. He also says that Mr Haque failed to present to the RRT important information that could have supported his protection visa claim. He asked me to look at a bundle of documents which he said supported his protection visa claim and told me that those documents had not been put before the RRT. He told me that because of dissatisfaction with Mr Haque he withdrew instructions from him and instead instructed Mr Hoq Mollah.

5. Whatever may have been the problems or defects in the representation of the applicant before the RRT by Mr Haque, they do not point to jurisdictional error on the part of the RRT. The presiding member did the best he could with the material available to him at the time. That material was unpersuasive.

6. The judicial review application filed on 16 June 2003 sets out nine grounds. Those grounds are in a form with which this Court has become quite familiar. The grounds are meaningless in the absence of particulars. The applicant was ordered by Registrar Hedge on 6 August 2003 to file and serve an amended application and any evidence on which he proposed to rely on or before 30 October 2003. He did not do so and it appears from the correspondence file that the matter was listed to be dealt with in a non-compliance list.

7. Although it is not clear, it appears that the matter might have been taken out of that non-compliance list because of a delay in the applicant obtaining advice from a panel adviser. The correspondence file confirms that ultimately the applicant did receive such advice, however, no amended application has been filed. The applicant has filed written submissions on 20 August 2004, but they do not assist him. The written submissions, to the extent that they are coherent, raise assertions of bad faith but have no substance. Such allegations are too readily made and too seldom supported. The submissions raise some point concerning s.424A of the Migration Act 1958 (Cth), but it is not clear what the point is that is being raised concerning that section. There is also some generalised claim, apparently based on the High Court decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) HCA 30.

8. The applicant told me from the bar table that both his application and his written submissions were prepared for him by his present migration agent, Mr Hoq Mollah. The applicant was not in a position to expand upon the application and written submissions himself. That is hardly surprising. Even a legal practitioner would have difficulty in attempting to make use of these documents.

9. I invited the applicant to give evidence in relation to his dealings with Mr Hoq Mollah after he told me that he paid money to him for his services. He was unwilling to do so. He was also unwilling to give evidence in relation to his dealings with Mr Haque. I gained the impression that he feared some retribution if he gave evidence. What this tells me is that this applicant may be a victim of the system for the representation of applicants before the RRT. Whatever may be the merits of applicants being represented by migration agents before tribunals, there is no benefit in such representation before this Court. With very few exceptions, applicants in migration proceedings in this Court who are able to obtain qualified legal representation are well served by that representation. In contrast, migration proceedings in this Court are bedevilled by migration agents who are willing to accept substantial sums for their services, but who are unwilling to go on the record as representing anyone, or to put their names to the worthless documents they prepare. Such representation is a hindrance by and large, and is unlawful to the extent that the migration agents receive remuneration and are not admitted legal practitioners. I will direct in this matter, that the transcript of the proceedings be obtained and referred by the Court to the Migration Agents Registration Authority and the Legal Services Commission for such action as they consider appropriate.

10. There is no substance to any of the grounds of review advanced in the application. Neither is any jurisdictional error apparent to me. In the circumstances, the decision of the RRT is a privative clause decision. Accordingly, the application must be dismissed.

11. On the question of costs, Mr McInerney has sought an order for costs fixed in the sum of $4,000 on a party and party basis. I explained the operation of the order sought to the applicant and he did not wish to make any further submissions. This was a very straightforward matter both in terms of physical preparation required and in relation to the legal issues. No issue of any consequence was raised by the applicant in his application or his written submissions. In the circumstances, in my view, an order fixed in the sum of $3,000 is adequate on a party and party basis.

12. I will, in addition, give both parties liberty to apply that the costs that the applicant has been ordered to pay be paid by Mr Hoq Mollah, given his apparent involvement in the legal proceedings. I will therefore make the following direction and orders. The Court directs that the transcript of today's proceedings be obtained and referred by the Court to the Migration Agents Registration Authority and the Legal Services Commission for such action as they consider appropriate.

13. I order that the application is dismissed and that the applicant is to pay the Minister's costs and disbursements of and incidental to the application, fixed in the sum of $3,000. Both parties have liberty to apply within 28 days for an order that Mr Hoq Mollah pay the costs that the applicant has been ordered to pay.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 20 September 2004
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