SZAMI v Minister for Immigration & Multicultural & indigenous Affairs [2004] FCA 1530

FEDERAL COURT OF AUSTRALIA

SZAMI v Minister for Immigration & Multicultural & indigenous Affairs [2004] FCA 1530

MIGRATION – no question of principle – appeal dismissed Federal Court of Australia Act 1976 (Cth) s 25(1A) Migration Act 1958 (Cth) s 426A(1) SZAMI v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 584 OF 2004 HELY J 22 NOVEMBER 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 584 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAMI

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 22 NOVEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of $750. 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 NSD 584 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAMI

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 22 NOVEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of Bangladesh who claimed to fear persecution at the hands of members of the Awami League and the Bangladesh National Party as a result of his political activities and profile as a member of the student wing of the Jatiya Party. 2 The appellant did not attend the hearing before the Refugee Review Tribunal ('the RRT'), which he was invited to attend, nor did he contact the RRT to explain his absence. The RRT proceeded to make a decision on the papers before it in accordance with s 426A(1) of the Migration Act 1958 (Cth) ('the Act'). In its reasons for decision the RRT described a number of problems which it had with the appellant's claims such that it was unable to be satisfied that the appellant was active within the Jatiya Party or that he was attacked or had been charged with any offences. The RRT was not satisfied that he had ever been of adverse interest to the Bangladeshi authorities or to anyone else in Bangladesh. 3 In the circumstances, the RRT was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason. The application for review heard by the Federal Magistrate relied upon two grounds; namely, the RRT did not consider the evidence according to law; and second, the RRT did not follow the proper procedures according to law. No particulars were given of either ground, nor did the appellant file written submissions in relation to them. 4 Barnes FM records in her reasons for judgment that in his oral submissions the appellant did not address the particulars of his claims but rather took issue with the merits of the RRT's decision. Barnes FM found that the RRT did consider the appellant's claims as set out in the material before it, and thus dismissed the appellant's first ground. The Federal Magistrate also found that there was nothing in the materials before her to support the appellant's claim that the RRT did not follow the proper procedures according to law. Accordingly the application for review was dismissed. 5 The Notice of Appeal to this Court raises three grounds of appeal: '1. The Honourable Magistrate failed to consider that the Refugee Review Tribunal erred in not taking into consideration the threat to life or liberty, significant harassment the appellant will experience on return back to his country of residence. Therefore, tribunal made error of law in his decision. 2. The Honourable Magistrate should have found that the tribunal erred in law amounting to jurisdictional error in determining that the appellant does not have any profile and is not a person to whom Australia has protection obligation under the Refugee Convention and does not satisfy the criterion set out in s.36(2) of the Act for a protection visa. 3. The honourable Federal Magistrate failed to find that the refugee review tribunal did not put to the applicant its doubts about documents containing information personal to the applicant from different sources of Bangladesh, and those doubts formed part of the reason for the Tribunal's decision.' 6 The appellant did not comply with a direction which I gave on 21 May 2004 that he should file and serve written submissions in support of his grounds of appeal. However, the appellant appeared in person this morning and put some matters to me. The general substance of what he put was that he will suffer harm if he returns to Bangladesh. He said that ninety-five per cent of the people in Bangladesh are suffering and everybody knows about it, and that he came here wishing to study and he would be willing to return to Bangladesh if he had security in so doing, which he does not. 7 In my view, there is no substance in any of the grounds of appeal. As to ground 1, the RRT took into account the appellant's claims but did not accept them. The same may be said in relation to ground 2. Ground 3 bears no relationship to the facts of this case as the RRT's decision was not based upon the presentation to it of fabricated documents. This ground seems to be taken from some inappropriate precedent. 8 The matters that were put to me orally by the appellant this morning do not establish any error on the part of the Federal Magistrate, nor any error on behalf of the RRT. The appellant's submissions to me this morning impermissibly invite me to embark upon a merits review. This is something which the law does not permit. The appeal should be dismissed with costs. 9 The Minister seeks an order that the costs of this appeal be fixed at a sum of $750. That strikes me as being a reasonable sum and I think it is in everybody's interests that I should make an order that the respondent pay the appellant's costs, which I assess at $750, rather than putting people to the increased costs which would be involved in a taxation of that sum. 10 The appellant has explained his personal circumstances and the other demands upon such limited funds as he has. Ms Rayment has been good enough to indicate that the Minister customarily is prepared to entertain in a proper case an application to pay costs by instalments. All that I can do is to suggest to the appellant that he should have a quick discussion with Ms Rayment before he leaves the Court in order to learn what the Minister expects of an application for leave to pay by instalments and as to the procedure by which such an application should be made. 11 I order that the appeal be dismissed with costs which I assess at $750. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.