FEDERAL COURT OF AUSTRALIA

SZARK v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1458

SZARK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1218 of 2004

MADGWICK J

19 OCTOBER 2004

SYDNEY

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1.                       The notice of objection to competency be upheld and the proceedings be dismissed.

2.                       The appellant pay the respondent’s costs assessed in the sum of $1,750.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

HIS HONOUR:

1                     These proceedings concern a notice of objection to competency in relation to a notice of appeal filed on 11 August 2004, whereby the would-be appellant sought to appeal from a judgment of Federal Magistrate Driver, given on 23 July 2004.

2                     The appellant is a national of Bangladesh who arrived in Australia on 21 December 1999 on a student visa.  On 1 February 2000, he lodged an application for a protection visa, which a delegate of the Minister, the projected respondent in the purported appeal, whom I shall call the respondent, refused to grant a protection visa.  On 3 April 2000, the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of that decision.  There was then a delay of over two years before that application was rejected by the Tribunal on 19 July 2002.

3                     The appellant then sought judicial review in the Federal Magistrates Court by an application filed, as Federal Magistrate Driver said, ‘many months’ outside the time limit of 28 days prescribed by s 477 of the Migration Act 1958 (Cth) (‘the Act’).  The learned Federal Magistrate found that there was no jurisdictional error made by the Tribunal.  It followed that

the decision was a privative clause decision and the 28-day time limit I have referred to would be applicable.

4                     Accordingly, his Honour upheld an objection by the respondent to the competency of the proceedings in the Federal Magistrates Court and the appellant’s application was dismissed as incompetent with costs.  By his purported notice of appeal, the appellant relies on the following grounds:

‘The Federal Magistrates Court failed to find that the … Tribunal erred in law in determining that one could practice (sic) homosexuality “discretely” (sic) without a real chance of harm, one was not at real risk of persecution in Bangladesh.

The … Tribunal … erred in law in determining that the applicant did not fall within a class of persons constituting “a particular social group” for the purposes of article 1A(2) of the Refugee Convention.’

5                     The appellant had claimed to be homosexual in his sexual orientation, a claim accepted by the Tribunal.  He said in his application for a visa that his sexual orientation:

‘Ultimately jeopardised my life in Bangladesh.’

6                     In the application he promised a detailed statement in two weeks, which never arrived.  The application for review by the Tribunal did not ascend to any more detail.

7                     The Tribunal wrote to the appellant on 25 June 2002 advising him that it had considered all the papers related to his application but that it was unable to make a favourable decision on that information alone.  He was invited to give oral evidence to present arguments at a hearing on 19 July 2002 and warned that if he didn’t attend or secure an adjournment, the Tribunal might make a decision in the case without further notice.  The Tribunal also contacted the appellant’s adviser who confirmed the address details and indicated that he had been unsuccessful in contacting the appellant also.  The Tribunal attempted to telephone the appellant, but the telephone service which he had nominated had been disconnected.

8                     Accordingly, the Tribunal made its decision pursuant to section 426A of the Act.  The independent country information seems to have indicated that whereas Islamic law held homosexuality to be illegal, the national law of Bangladesh did not.  The Tribunal indicated that there was no independent evidence before it to indicate that homosexuals were the subject of prosecution or other means of persecution in Bangladesh and did not accept the merely generalised claims without any particulars so briefly outlined by the appellant in his initial documentation.  Inevitably, the Tribunal dismissed the application for review. 

9                     The appellant speaks English quite well and has the advantage of a capable Bengali interpreter.  He has declined the opportunity to say anything to the Court.  I see no basis for any reasonably arguable contention that the Tribunal erred in law, let alone made any jurisdictional error.  Accordingly, I see no basis for any arguable contention that the learned Federal Magistrate made any error.  It follows that it would be futile to grant leave to appeal as there is no reasonable chance of the appellant succeeding and leave to appeal will be refused.

10                  Accordingly, I uphold the notice of objection to competency and the proceedings are dismissed.

11                  The appellant is to pay the respondent’s costs which are fixed in the sum of $1,750.

Associate:

Dated:              10 November 2004