SZASP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 151

FEDERAL COURT OF AUSTRALIA

SZASP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 151

MIGRATION –whether the Refugee Review Tribunal foreclosed upon reasonable speculation as to persecution of the appellant on his return to his country of origin Haji Ibrahim v Minister for Immigration and Multicultural Affairs (2001) CLR 1 referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to Minister or Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 referred to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 cited Abebe v Commonwealth (1999) 73 ALJR 504; 162 ALR 1 cited SZASP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1606 OF 2004 CONTI J 28 FEBRUARY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1606 OF 2004

BETWEEN: SZASP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 28 FEBRUARY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal assessed at $3500. 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 1606 OF 2004

BETWEEN: SZASP

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: CONTI J

DATE: 28 FEBRUARY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the judgement of Lloyd-Jones FM given on 15 October 2004, whereby his Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('RRT') handed down on 22 November 2000. The RRT decision had affirmed the decision of the delegate of the Minister made on 21 April 1998, which had refused the appellant's application for a protection visa. 2 The appellant is a 29 year old Bangladeshi national from Dhaka in Bangladesh, who entered Australia on 7 October 1997, travelling on what the RRT found to be a fake Indian passport and a temporary business visa. The appellant lodged an application for a protection visa on 19 November 1997, and in a statement subsequently provided to the delegate, he claimed that he feared persecution on the basis of his political opinion and activities. 3 The appellant's notice of appeal contained three grounds of appeal. Two were pursued at the hearing as follows: (i) the Court erred in holding that there was no jurisdictional error in the RRT's finding that injuries inflicted on the appellant had to be disabling or life threatening to constitute persecution; and (ii) the Court erred in holding that the RRT had not committed consequential error in its finding, partly on the basis that the appellant had not been persecuted in the past, that he did not have a well founded fear of persecution were he to return to Bangladesh.