SZAJX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1007

FEDERAL COURT OF AUSTRALIA

SZAJX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1007 SZAJX V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 497 OF 2004 BEAUMONT J 6 AUGUST 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 497 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAJX

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE OF ORDER: 6 AUGUST 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed, with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 497 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAJX

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BEAUMONT J

DATE: 6 AUGUST 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

BACKGROUND 1 This is an appeal from a judgment of Jarrett FM, delivered on 22 March 2004, which dismissed the appellant's application for review of a decision by the Refugee Review Tribunal ('Tribunal') made on 18 September 2001 (handed down 9 October 2001) refusing the grant of a protection visa. The appellant is a Bangladeshi citizen, who arrived in Australia on a student visa on 11 September 1998 and lodged an application for a protection visa on 21 May 1999, claiming to fear persecution for reasons of his political opinion. His claim was based upon being a former member of the Bangladesh National Party ('BNP').

THE Decision of THE Tribunal 2 It will be necessary to explain the process of reasoning adopted by the Tribunal more fully later in considering conclusions on this appeal, but the Tribunal's decision may, for immediate purposes, be summarised as follows: 3 Three broad claims were identified by the Tribunal: (i) if the appellant returned to Bangladesh he would, by reason of his past involvement in politics, be seen as a political activist and therefore still face harm at the hands of his political opponents, the Awami League ('AL'), who now control the government; (ii) even if he withdrew from politics, he would nonetheless be at risk of harm from his political opponents because of the political activities of two of his brothers; and (iii) if he returned to Bangladesh and withdrew from politics, as he intended to do if returned, he would suffer harm from his political allies because his party colleagues would expect him to be involved in their activities and would consider him a traitor if he did not join up with them again. 4 The Tribunal accepted that the appellant was a Bangladeshi national and a member of the BNP. 5 However, the Tribunal further found that – · There was no evidence to support the appellant's claims that merely by withdrawing from politics, one is in danger from one's former colleagues, stating: 'the independent evidence indicates that violence is endemic in Bangladesh politics but … this violence is directed by political supporters of one allegiance against political supporters of opposing allegiances'. · It was highly implausible that the appellant was well known to 'all the top leaders' and that because they wanted him to become more involved, his going overseas would have been viewed as 'disobedience', and so they would wish to punish him for this. · As the appellant has now been outside the country for over three years, there would be no reason for him to be seen as an activist, if indeed he has not been active for the past three years, and does not resume his political activities upon return to Bangladesh. 6 The Tribunal noted the absence of any claim that the appellant's other brothers, who are not politically involved, have been attacked at all and further found that since the appellant does not intend to become involved in politics again, there is 'no reason why he should be in any more danger than his other brothers who have not been attacked'. 7 Accordingly, the Tribunal was not satisfied that the appellant had a well-founded fear of persecution.