SZBDE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 370

FEDERAL COURT OF AUSTRALIA

SZBDE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 370 SZBDE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 159 of 2005 TAMBERLIN J SYDNEY 29 MARCH 2005

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 159 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZBDE

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE OF ORDER: 29 MARCH 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay the costs of the respondent. 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 159 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZBDE

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: TAMBERLIN J

DATE: 29 MARCH 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Federal Magistrate Driver ("the Federal Magistrate") given on 20 January 2005. The Federal Magistrate dismissed the application for review of a decision of the Refugee Review Tribunal ("the Tribunal") and ordered the appellant to pay the Minister's costs. The decision of the Tribunal was made on 19 June 2003 and that decision was to affirm a decision by a delegate of the Minister not to grant a protection visa to the appellant.

The tribunal decision 2 The Tribunal was satisfied that the appellant is a citizen of Bangladesh. The appellant claims to fear persecution from supporters and members of the Bangladesh National Party ("BNP") and Jamaat I Islam Party ("JIL") because of his political opinion and Awami League activities. In support of his case, the appellant claims that he was attacked, and his property looted, by BNP supporters in February 2001 and that he fears he will be killed if he returns to Bangladesh. 3 The Tribunal said that it had considered the appellant's claims in his protection visa application and review application, together with his oral evidence, his adviser's written submissions and documents lodged by the appellant in support of his claims. I note that the appellant had an adviser present at the hearing before the Tribunal. 4 The Tribunal accepted that the appellant was a supporter and member of the Awami League, but it did not accept that the appellant was a prominent member, or an executive member, of the local Awami League and gave reasons for this conclusion. On the hearing today, the appellant said that the reasons given by the Tribunal were wrong, however, this is a question of fact for the Tribunal and not for this court. 5 The appellant contended that he was attacked by BNP supporters who observed him passing by a political meeting. The appellant further claimed that the police were not interested in the looting of his business or the attack on him that arose from the political meeting. The Tribunal considered that it could not be said that the police had acted unreasonably, as the appellant did not complain to the police about the assault. 6 In addition to fearing for his life, the appellant claims that he fears for his family's safety. At the hearing, the Tribunal noted that the appellant did not make any specific claims of mistreatment of his family, although there were some general claims about family members being harassed. The Tribunal noted that the appellant's family had remained in their home and was not satisfied that they were at risk of harm from BNP supporters. 7 The Tribunal also considered the situation if the appellant returned to Bangladesh as an Awami League supporter and member. After having regard to country information, the Tribunal concluded that the appellant's involvement in politics was of a low level and therefore would not cause mistreatment by members of the BNP or the present government of Bangladesh. 8 The Tribunal did not accept claims that the appellant had outstanding false charges against him in Bangladesh, that he faced arrest if he returned or that the police were not prepared to assist him in relation to the alleged looting or attack. 9 The Tribunal also considered that the appellant could relocate in Bangladesh and that such relocation would be reasonable. In forming this view, the Tribunal had regard to the fact that the appellant was well‑travelled and had demonstrated resilience and flexibility in living in Australia.