Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - RRT decision - Bangladeshi applicant did not attend RRT hearing - complaints that matters were not considered - no jurisdiction error found.

SZAUZ v Minister for Immigration [2004] FMCA 655 (22 September 2004)

SZAUZ v Minister for Immigration [2004] FMCA 655 (22 September 2004)
Last Updated: 20 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAUZ v MINISTER FOR IMMIGRATION
[2004] FMCA 655



MIGRATION - RRT decision - Bangladeshi applicant did not attend RRT hearing - complaints that matters were not considered - no jurisdiction error found.



Migration Act 1958 (Cth), ss.424A , 426A, 483A, Part 8

Federal Magistrates Court Rules 2001, P 21 r 21.02(2)(a)

Judiciary Act 1903 (Cth), ss.39B

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Applicant:
SZAUZ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1138 of 2003



Delivered on:


22 September 2004



Delivered at:


Sydney



Hearing date:


22 September 2004



Judgment of:


Smith FM



REPRESENTATION

Solicitors for the Applicant:


In person



Counsel for the Respondent:


Mr T Reilly



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $3500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1138 of 2003

SZAUZ


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), which challenges a decision of the Refugee Review Tribunal affirming the refusal of a protection visa to the applicant. Under s.483A this court has "the same jurisdiction as the Federal Court in relation to a matter arising under" the Migration Act. The jurisdiction of the Federal Court is its judicial review jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and section 39B of the Judiciary Act 1903 (Cth), but subject to limitations under Part 8 of the Migration Act.

2. The judicial review jurisdiction of the court can provide a remedy only where a legal defect can be identified in the administrative action under challenge, and the court does not have power to correct an error if that error is merely an error of fact or judgment on the merits of the person's case.

3. Part 8 limitations on the court's judicial review jurisdiction arise in relation to applications concerning a "privative clause decision", but the High Court has said that relief can be given if an applicant can make out an error by the Tribunal which amounts to a jurisdictional error. That requires an applicant to prove that the Tribunal has actually or constructively failed to exercise its power of decision, so that, in effect, it hasn't made a decision exercising the jurisdiction given to it. In short, an applicant has to prove jurisdictional error by the Tribunal before the court can set aside its decision.

4. The present applicant's matter concerns a visa application he lodged in February 2001. He arrived in February 2000 on a student visa, which was renewed and was due to expire in June 2001. His application for a protection visa was lodged by a migration agent on his behalf. The covering letter indicated that the applicant was trying to collect material from overseas, and requested that the Department "allow him a few weeks (four to six weeks from the day of submission of his application, i.e. 01/02/01) to forward all the mentioned (sic) to the department." The form of application which was enclosed contained some general assertions about the applicant's fear of persecution if returned to Bangladesh, but no supporting material at all.

5. As it turns out, no further material was forwarded to the decision-maker either by the applicant or by his migration agent. In the decision that was made on 1 May 2001, the decision maker noted: "It is three months since the application was lodged. The applicant has provided no evidence to support his claims." However, the decision-maker addressed the situation in Bangladesh and, not unexpectedly, was not persuaded that the applicant had a real chance of Convention based persecution if he returned to Bangladesh.

6. The applicant lodged an appeal to the Refugee Review Tribunal on 21 May 2001, again using a migration agent. No supporting material was attached to the application, but it said: "Please see my next statement and submission from my adviser." Once again, no such material was forwarded at any time to the Tribunal.

7. On 21 March 2003, the Tribunal wrote a letter to the applicant, with a copy to his migration agent, which stated:

"Your Application for Review

The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.

Hearing of the Tribunal

We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in court of your claims. You can also ask the Tribunal to obtain oral evidence from another person or persons.

If you want to come to a hearing it will be on: [specifying a time and place]

Important information about your hearing

* The Tribunal will only change this hearing date for good reasons.

* If you think you might be unable to attend the hearing, you must contact the Tribunal immediately. If you do not attend the hearing and the Tribunal does not postpone the hearing, it can make a decision on your case without further notice.

If you have a passport you should bring it to the hearing.

"Response to Hearing Invitation" form

Please read and complete the enclosed form carefully and:

* tell us if you are coming to the hearing or not coming to the hearing

* complete the "Witnesses" part of the form if you want the Tribunal to get oral evidence form another person; please note the Tribunal does not have to get evidence from any person you name

* send us any new documents or written arguments you want the Tribunal to consider; please note any documents or arguments you send should be in English or translated by a qualified translator

* answer all the other questions on the form and return the completed form and nay new documents or written arguments by 8 April 2003.

We have enclosed a brochure that explains what will happen on the day of the hearing. You can also find more information on [referring to web site, and telephone inquiry contact details]."

8. In response to that invitation, the applicant did return the "Response to Hearing Invitation" indicating a "yes" to the question: Do you want to come to a hearing? He also indicated that an interpreter was not needed, and that he was not requesting the Tribunal to take oral evidence from witnesses.

9. However, the record of the hearing indicates that the applicant did not attend the hearing. The Tribunal in its reasons handed down on 4 June 2003 notes the fact that he failed to appear at the hearing, and states: "No explanation for his absence has been provided, either directly or through his adviser." The Tribunal indicated that it decided to proceed to a decision on the papers and it did so.

10. The Tribunal attempted to assess the applicant's claims to refugee status as set out in the original application, that being the only material the applicant had ever provided to seek refugee status. In my view, the Tribunal sufficiently summarised the effect of his unparticularised claims. Put shortly, they were that he had had an "inseparable association" with "communist alliance and involvement and contribution to the workers party of Bangladesh", and that he was afraid of "the current Awami administration and their terrorist associates". The Tribunal said that "it is a problem for the applicant that he has made such sketchy claims" and had failed to attend "to add necessary details". It also indicated that due to changes to government in Bangladesh, it had felt the need: "to discuss with the applicant the fact that the Awami League no longer rules Bangladesh."

11. In its "findings and reasons" it stated:

The Tribunal accepts that the Applicant is a Bangladeshi national. The Tribunal accepts that the Applicant achieved the claimed high standards of education in his chosen field of banking. The Tribunal can find no evidence on which to be satisfied that the Applicant has affiliations with the communist, socialist or workers' movements in Bangladesh. As the Applicant's vague and unsupported assertions about his political career and political problems are at odds with other information he has provided, the Tribunal concludes that it does not accept those assertions.

The Tribunal also concludes that the Applicant has grossly exaggerated the Workers' Party's presence as a threat to the other parties named.

The Applicant has shown that he has no interest in expanding upon the vague claims he originally made, let alone of speaking to the change of political circumstances that has occurred since he first applied for a protection visa and since the October 2001 elections.

The Applicant's evidence of legal and unhindered exit from Bangladesh is evidence of his facing no problems, let alone any relevant ones, with the authorities in his country of nationality.

The Tribunal concludes that the Applicant is not really sincere about his protection visa application. It is not satisfied that the Applicant faces a real chance of Convention-related persecution in Bangladesh. He is not a refugee.

12. The applicant filed his application for review in this court on 23 June 2003, and it is unfortunate that it has taken over a year to come to a hearing. In his application, which was filed without any apparent assistance from a lawyer, five grounds for judicial review are set out. No particulars in relation to any of them were provided either in the application or subsequently, and they are meaningless in their current form. Although at the directions hearing held on 14 August 2003 the applicant was directed to provide additional particulars and a summary of argument, he did neither of these things.

13. He did attend today's hearing and I have endeavoured to understand the points that he made in the course of his address. As I understand it, he made seven points.

14. His first point was that there was a defect in the procedure followed by the Tribunal, which had caused him not to appear at the hearing before the Tribunal and, therefore, had prevented him explaining his circumstances more fully. The applicant said from the bar table that he was motivated not to appear despite sending his acceptance of the invitation because he was not sent "written questions" before the hearing.

15. I do not understand why the absence of "written questions" should have stopped him from attending, and I do not understand how he could possibly believe from the invitation that had been sent to him (set out above) that this was going to be a procedure that would be followed by the Tribunal. In my view, the letter that was sent to him clearly indicated that he was being given one opportunity to elaborate his case, and that that would be met by his attending on the specified occasion. There was also a plain invitation drawing his attention to the opportunity to present additional material, including written material, and drawing his attention (in effect) to s 426A of the Migration Act which allowed the Tribunal to make a decision without taking further action if he did not attend.

16. There is nothing in the procedures that have been followed by the Tribunal that, in my view, amounted to a denial of procedural fairness or a failure to follow any of the procedures set out in the Migration Act which the Tribunal is required to follow. In particular, I accept the submission by counsel for the Minister that there was no obligation in the circumstances on the Tribunal to give notice pursuant to s 424A of concerns arising from material which had not originated from the applicant. I do not accept that the first point raised by the applicant provides a good ground of review.

17. The applicant's second point was that the Tribunal did not consider the current political and social events occurring in Bangladesh. This submission at times transcended events occurring at the time of the Tribunal's decision, and I was addressed on events that had recently attended. As I pointed out to the applicant, it is no part of the court's function to consider recent events occurring after the Tribunal's decision. In relation to the argument that the Tribunal failed to consider events current at the time of the Tribunal's decision, the applicant said that there had been an important article in Time Magazine concerning Bangladesh published in 2001, which the Tribunal did not address.

18. On the material before me, I am unable to conclude that the Tribunal had any obligation to address that article, particularly in circumstances where the applicant was unable to show me that he had drawn the article to the attention of the Tribunal. Nor was he able to point to any other particular piece of information which he could show the Tribunal had failed to look at. The Tribunal's reasons show that it was generally aware of recent events in Bangladesh, and I do not accept that it should have inquired further. Moreover, a failure to address a particular piece of information about a country's circumstances would not, of itself, have amount to jurisdictional error.

19. The applicant's third point concerned the Time Magazine article to which I have just addressed. In short, the applicant never asked the Tribunal to look at the article and it is absurd to suggest, as the applicant put to me, that they should have asked him to send it.

20. The applicant's fourth point was that at the time of the Tribunal's decision there had been violence and killing in Bangladesh which the Tribunal had not addressed. He claimed that those events had, in fact, made him fear persecution if he were returned, and that the Tribunal had not considered his fears in that respect.

21. Again, the short answer to this point is that the applicant had given up his own chance to explain his fears to the Tribunal, and he cannot now complain that he didn't attend and tell the Tribunal about those fears.

22. The applicant's fifth point was that he is a person who had obtained prestigious degrees in Bangladesh in finance and banking, that he had been unable to get a job in Bangladesh because of discrimination based on his political associations with the Workers Party, and that the Tribunal had not considered this evidence of persecution.

23. The difficulty facing the applicant on this point, as with his other points, is that by abandoning his opportunity to attend the Tribunal hearing, he also abandoned his opportunity to draw this claim to the Tribunal's attention. Moreover, the Tribunal's reasoning does appear to address his educational background, albeit reaching a conclusion from it which the applicant now does not like.

24. The applicant's sixth point was that if the court did not make an order that would allow him to remain in Australia then his life was still in danger in Bangladesh. His seventh point was that he had been in Australia for nearly four years and did not want to go back to Bangladesh. Unfortunately those two points do not provide grounds which the court can act upon in the absence of jurisdiction error having been found in the decision of the Tribunal.

25. I have endeavoured to address all the points made by the applicant in submissions to me today, notwithstanding that they have not been foreshadowed prior to the hearing, and understanding that he has endeavoured to put his case as well as he can.

26. Taking into account all that the applicant has said to me, I have decided that I must dismiss the application and I do so.

27. RECORDED : NOT TRANSCRIBED

28. I make the normal order as to costs, that is, that the applicant pay the respondent's costs which I assess in the sum of $3,500.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date: 1 October 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia