FEDERAL COURT OF AUSTRALIA

SZAHH v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 296

SZAHH & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1838 OF 2003

STONE J

18 MARCH 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The first 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

REASONS FOR JUDGMENT

1                     This is an appeal from the judgement of Raphael FM of 30 October 2003.  The appellant is a citizen of Bangladesh who arrived in Australia on 21 February 1992 on a student visa.  Since that time he has travelled to and from Bangladesh, his latest arrival in Australia, according to the Australian Movement Database, being on 13 April 1997.   His wife, the second appellant arrived in Australia in June 1997.  The third appellant, their son was born in Australia on 20 March 1999. 

2                     The first appellant applied for a protection visa in May 2000 and the second and third appellants sought to be included in the grant of that protection visa as family members of the first appellant.  In these reasons I will refer to the first appellant as the appellant.  The appellant’s application was refused in turn by a delegate of the respondent and by the Refugee Review Tribunal.  The learned Federal Magistrate upheld the Tribunal’s decision. 

3                     The appellant claimed to have a well-founded fear of persecution for reason of his political opinion arising from his activities as a member of the student wing of Jamaat-e-Islami, a political party that has a pure Islamic state as its goal.  He said that he was very active with that group and was a well known political activist.  For that reason he was targeted not only by the Bangladesh National Party (‘BNP’) Government but subsequently by the Awami League government and again, by the BNP when it which returned to government in 2001.

4                     The appellant said that the BNP government also fabricated a charge of rape against him.  That charge was pursued by the Awami League when it came to power and again, by the BNP when it returned to government.  The appellant said that between 1989 and 1992 he studied in Saudi Arabia where he continued his political activities among the Bangladeshi population in that country.  He claimed that he was harassed when he was a student in Saudi Arabia although before the Tribunal he was not able to give any details of this harassment. 

5                     The appellant also claimed that in order to avoid the authorities in his own country he came to Australia on a false passport.  In relation to this claim the Tribunal said:

‘Whatever the circumstances of obtaining the original passport, the Tribunal notes that it was subsequently extended by Bangladeshi authorities in 1999 and a replacement passport [was] issued in March 2000.  The Tribunal noted that he was issued with a passport in his own name.  The Tribunal finds, on the basis of that information, the applicant is not, has not been ever, a person of adverse interest to Bangladeshi authorities.’

6                     The Tribunal ‘was prepared to accept’ that the appellant was associated with the student wing of Jamaat-e-Islami between 1987 and 1992 but said the paucity of the appellant’s evidence was such that it was not able to accept that he held any leadership position or that he was a recruiter or an organiser of demonstrations in Saudi Arabia.  The Tribunal relied on independent country information to conclude that had the appellant been involved in such activities in Saudi Arabia he would have been dealt with by that country quickly and harshly.  The Tribunal continued:

‘From the country information which it accepts, the Tribunal is satisfied that, even if [the appellant were] politically prominent, the BNP in government or in opposition, would not target him at a national level because, at the time he claims and now, his party and the BNP were and are, in coalition.  While the Tribunal accepts from his evidence and the same source, that local animosities might remain, the Tribunal does not accept that such threats, if any, cannot be evaded by re-location elsewhere in Bangladesh.  The applicant has language skills, a tertiary education and, from his own account, the backing of a well off family.’

7                     Before the Federal Magistrate the appellant claimed that there was no material to justify the making of the decision and that the Tribunal’s decision was affected by error of law.  The learned Federal Magistrate was of the opinion that the appellant was seeking merits review and, having reviewed the Tribunal’s decision said:

‘I am satisfied that the Tribunal has come to its conclusions based upon evidence that was available to it which has been clearly set out.  Its reasons and conclusions can be seen to have been arrived at from a consideration of the evidence before it.  There does not seem to me to be any matter other than one of fact that could give cause for concern about this decision and I therefore find that there are no grounds upon which it can be reviewed under section 39B of the Judiciary Act.’

8                     At the hearing before me the appellant claimed that the Tribunal made two errors of law and that these errors were not recognised by the learned Federal Magistrate.  He claimed that the Tribunal did not allow enough time at the hearing before it and did not investigate the claims made in his statement.

9                     When questioned about his claim that he was not given sufficient time at the hearing before the Tribunal (presumably a claim that he had been denied natural justice) the appellant was not able to elaborate on his claim and admitted that had he had more time he would not have put anything to the Tribunal which he had not already put.  He was similarly not able to particularise any issue that would have come to the Tribunal’s notice had it made investigation of the matters in his statement.

10                 In summary, the appellant's claims before the Tribunal, before the Federal Magistrate and before me are diffuse and vague.  He has not been able to identify any error made either by the Tribunal or by the Federal Magistrate.  For that reason this appeal must be dismissed.  The respondent Minister has advised that he does not seek costs against the second or third appellants and therefore, a costs order should be made only against the first appellant. 

11                 The orders of the Court therefore are that the appeal be dismissed and that the first appellant pay the respondent's costs.

Associate:

Dated:              23 March 2004