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Federal Court of Australia |
Last Updated: 8 April 2005
FEDERAL COURT OF AUSTRALIA
SZAZN v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 349
MIGRATION – no point of
principle
Migration Act 1958
(Cth)
SZAZN
v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
NSD 1903 OF 2004
MOORE J
8 APRIL
2005
SYDNEY
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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BETWEEN:
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SZAZN
APPELLANT |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the respondent's costs.
Note: Settlement
and entry of orders is dealt with in Order 36 of the Federal Court Rules.
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
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AND:
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REASONS FOR JUDGMENT
1 This is an appeal against a judgment of a Federal Magistrate of 7 December 2004 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision not to grant the appellant a protection visa.
2 The appellant arrived in Australia on 13 November 2001 on a Bangladeshi passport under a visa issued in Paris on 9 October 2001. He lodged an application for a protection visa on 30 November 2001. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant the visa on 22 February 2002. The appellant applied for review of that decision by the Tribunal on 12 March 2002. The Tribunal affirmed the decision of the delegate on 18 June 2003. The appellant applied to the Federal Magistrate for review of the Tribunal's decision on 22 July 2003.
Claims and evidence
3 The appellant is a citizen of Bangladesh of Muslim faith. He claimed a fear of persecution on the basis of political opinion. The gravamen of his claim was that supporters of the Bangladesh Nationalist Party ("BNP") demanded he make donations to the BNP and threatened to harm him if he refused. The appellant claimed to have been a member and office bearer of the Awami League ("AL").
4 He joined the student wing of the AL in 1980. In 1983 BNP supporters set fire to his house. In 1989 he organised an anti-Ershad (Jatiya party) rally and false charges were laid against him because of his involvement. He was Vice President of the AL in Ward 89 from 1991 until 1996 and was also an Executive Member of Dhaka City Mohanagar. He moved to Chittagong for 2 years in 1991 to escape threats and intimidation. When he returned he still supported the AL but was not actively involved in politics though he continued to be harassed for donations. In 1995, BNP supporters demanded he cease his involvement with the AL and anti-BNP rallies. They threatened to kill him if he did not cease his association with the AL. He did not lodge a claim with the police as they were biased and would not protect him.
5 In August 1996, when he could no longer cope with the threats he left for Saipan where he lived until August 2001 except for a three month visit to Bangladesh in February 1997. His wife and children remained in Bangladesh during these years. During his visit in 1997 his relatives told him the BNP and the police were searching for him to make a donation to the BNP. He was attacked and harassed for donations. Even after his departure his family continued to be harassed and attacked for donations.
6 The appellant returned to Bangladesh in August 2001. In October 2001 the BNP won the elections. BNP supporters became more insistent with their demands for donations and he feared they would kill him if he did not agree to their requests. The false charges laid against him during the Ershad regime were revived. The government were arresting AL members all over the country. The BNP burnt his ward office and killed hundreds of people. He cannot relocate within Bangladesh because opposing political parties are located throughout Bangladesh and BNP supporters get their instructions from central leaders. He travelled to France and the UK but had no family or friends in either place so did not apply for refugee status in those places.
7 The appellant claimed, despite his absence from politics for seven years, that all AL supporters were in danger of harm.
The decision of the Tribunal
8 The Tribunal accepted the appellant was a member and supporter of the AL until he left Bangladesh for Saipan in 1996. Noting that he spent two years in Chittagong from 1991 and was not actively involved in the party on his return from Chittagong, the Tribunal was not satisfied that he was an office bearer from 1991 to 1996. The Tribunal accepted that demands may have been made before his initial departure for Saipan. However, it did not accept that after 7 years absence from Bangladesh and even longer from politics he faced any threat or risk of harm arising from his refusal to make donations to the BNP or from his former involvement with the AL. The Tribunal was not satisfied of any current threat of harassment or harm to the applicant from his former political opponents in the BNP or their coalition partners.
9 The Tribunal acknowledged that some independent information indicated that since the BNP coalition government was returned to power in October 2001 some senior leaders of the AL had suffered harassment and detention but that there was no evidence of targeted discrimination against people for reasons of membership of the AL, or for serving as a low profile local official of the AL. The Tribunal was satisfied the appellant's involvement in politics was at a very low level and did not accept he faced a real chance of persecution for political reasons if he were to return.
10 Because the Tribunal did not accept that the appellant faced a real chance of persecution for political reasons if he returned to Bangladesh now or in the foreseeable future the Tribunal made no findings about whether reasonable state protection was available to the appellant. It was satisfied that it would be reasonable for him relocate to another part of Bangladesh where he would not be well known. It was not satisfied the appellant had a well founded fear of persecution for any Convention related reason.
The Federal Magistrate's reasons for judgment
11 The appellant relied on an amended application filed on 9 February 2004. The grounds for review identified in the amended application were that the Tribunal failed to accord the appellant procedural fairness as required under s 424A(1) of the Migration Act 1958 (Cth) ("the Act").
12 The appellant claimed that the Tribunal's failure to provide him with particulars of embassy reports and other material was a failure to comply with s 424A(1). The Federal Magistrate found that information fell within the exception under s 424A(3)(a) of the Act.
13 In written and oral submissions and in an amended application in the Federal Magistrates Court the appellant claimed that the Tribunal failed to put its doubts to him concerning documents from the AL containing information personal to him and the court case brought against him. The Federal Magistrate noted there was no obligation on the Tribunal to put to the appellant its independent thought processes or disclose its state of mind. Her Honour noted there was no evidence that there were documents before the Tribunal concerning any court case or information personal to the appellant.
14 Her Honour found the general allegations of improper use of the evidence and failure to follow proper procedures were not established. Her Honour found no basis for the claim that the Tribunal was biased. Given the finding concerning relocation, her Honour considered there was no obligation on the Tribunal to determine what socio-political changes might occur in the foreseeable future and concluded no jurisdictional error had been established.
The appeal and its disposition
15 On 20 December 2004 the appellant filed a notice of appeal in this Court against the judgment of the Federal Magistrate on the grounds that the Tribunal had denied the appellant procedural fairness and had exceeded its jurisdiction by failing to accord the appellant procedural fairness as required by s 424A(1) of the Act. On 7 March 2005 a much lengthier document was filed titled "APPLICATION SUBMISSION FOR FEDERAL COURT". That document began:
The applicants appeals from the decision of Louise Nicholls, Tribunal Member of the Refugee Review Tribunal given on 18 June 2003 pursuant to s 476(1)(f) on the grounds that the decision was induced or affected by actual bias.
16 The appellant went on to refer to s 39B of the Judiciary Act 1903 (Cth) and this Court's power under that Act. He also mentioned at the conclusion of the document that he did not receive a copy of the reasons for judgment of the Federal Magistrate dated 7 December 2004. I will proceed on the basis that the appellant is seeking to challenge the Federal Magistrate's judgment on the basis that her Honour failed to find actual bias on the part of the Tribunal or that the appellant was denied procedural fairness before the Tribunal or that it failed to give effect to s 424A(1).
17 In relation to the claim of actual bias, the appellant submitted that the findings of the Tribunal demonstrated actual bias. At base, however, he simply disagreed with factual findings which were open to the Tribunal.
18 In relation to being denied procedural fairness the appellant appeared to make three submissions. First, that the translation at the Tribunal hearing was such that at times the appellant could not understand what was being said to him or make himself understood to the Tribunal. There was no evidence in relation to this allegation. Secondly, that the Tribunal did not consider and did not "query regarding [his] relevant documents". There is no foundation to this submission. Thirdly, his case was conformable with the factual situation in Muin v Minister for Immigration and Multicultural Affairs [2002] HCA 30. This has not been established.
19 As to the appellant's submission that the Tribunal failed to give effect to s 424A(1), I am not satisfied that the Federal Magistrate erred in rejecting this submission. The submission concerned two classes of information. The first was country information and the second was, in effect, information concerning the preliminary views the Tribunal had formed about documents containing information personal to the appellant and about the proceedings against him. The trend of authority in this Court is against the proposition that the Tribunal is obliged, by that section, to provide an appellant with country information. There is no authority of which I am aware which suggests the Tribunal is obliged, by s 424A(1), to reveal to an appellant its preliminary assessment of, or reaction to, documents provided by an appellant.
20 The appellant has not demonstrated error on the part of the Federal Magistrate. The appeal should be dismissed with costs.
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I certify that the preceding twenty (20) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice Moore.
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Associate:
Dated: 8 April 2005
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The Appellant appeared in person.
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Counsel for the Respondent:
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M Allars
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Solicitor for the Respondent:
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Sparke Helmore
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Date of Hearing:
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15 March 2005
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Date of Judgment:
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8 April 2005
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2005/349.html