FEDERAL COURT OF AUSTRALIA

SZAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 578

SZAUV & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

NO. NSD 2572 of 2005

HEEREY J

3 MAY 2006

SYDNEY

THE COURT ORDERS THAT:

1.      The application is dismissed;

2.      The appellants pay the respondents’ costs fixed at $1255.

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

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a judgment of a Federal Magistrate of 9 December 2005: SZAUV v Minister for Immigration & Multicultural Affairs [2005] FMCA 1840. The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal of 28 May 2003 affirming a decision of the delegate of the Minister to refuse to grant protection visas to the applicants.

2                     The applicants are nationals of Bangladesh and are members of the same family, a husband, wife and two children. The essence of their claims before the Tribunal was that they feared persecution because the applicant husband, who was a businessman in Bangladesh and supporter of the Awami League, claimed to be a victim of extortion on the change of government from the Awami League to the BMP Party.  The Tribunal did not reject the applicant father's claim that he was a victim of extortion but held that if he did pay extortion it was not because of his political affiliation. 

3                     The applicants have challenged the Tribunal's decision on a previous occasion in this court.  In SZAUV v Minister for Immigration & Multicultural Affairs [2004] FCA 1745 on 1 December 2004 Conti J dismissed an appeal from a judgment of a Federal Magistrate made on 10 September 2004: SZAUV v Minister for Immigration & Multicultural Affairs [2004] FMCA 647.  The applicants unsuccessfully sought special leave to appeal to the High Court from that judgment.

4                     Before the Federal Magistrate in the present application the applicant husband sought to raise a ground not raised in previous proceedings, namely that the Tribunal failed to consider his claim that he suffered extortion because of his membership of a particular social group.  He said that he could not afford legal representation in the earlier proceedings and this was why he had not raised the ground in question. 

5                     The Federal Magistrate was not satisfied that the inability to obtain legal representation constituted special circumstances that should entitle the applicants to raise arguments that they could have raised in earlier proceedings but did not do so.  The Federal Magistrate proceeded to dismiss the present application for review as an abuse of process, filed for the purpose of prolonging the applicants’ stay in Australia. 

6                     In support of the application for leave to appeal the applicant filed an affidavit which states that:

            “The FM repeatedly asked about assets in Bangladesh.  I like to say if in Bangladesh I don't have problem, I like to bring all the assets, sell money. The application was not vexatious nor an abuse of process.  A delegate's decision can be reviewed by the court under certain circumstances.  The court has previously reviewed decisions by the delegate.”

7                     The applicants also filed a draft notice of appeal stating that the Federal Magistrate erred in not considering that the delegate of the Minister gave a biased decision and that the Federal Magistrate did not consider that the questions that were not asked by the delegate of the Minister at interview were repeatedly asked by the Tribunal and this was an unfair procedure.

8                     The applicant husband was invited to put forward any further oral submissions in support of the application.  He said that he believed that he had not received a proper decision from any of the courts. 

9                     In my opinion the decision of the Magistrate was plainly correct for the reasons he gave and an appeal would have no reasonable prospect of success.

10                  The application for leave to appeal will be dismissed with costs fixed at $1255.

Associate:

Dated: