SZIKG v Minister for Immigration and Citizenship [2007] FCA 788

FEDERAL COURT OF AUSTRALIA

SZIKG v Minister for Immigration and Citizenship [2007] FCA 788 SZIKG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 453 OF 2007

TRACEY J

24 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 453 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIKG

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: TRACEY J DATE OF ORDER: 24 MAY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs fixed at $3,500. 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 453 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIKG

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: TRACEY J

DATE: 24 MAY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate given on 9 March 2007 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 18 January 2006 and handed down on 2 February 2006: (see: [2007] FMCA 337). The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs, as she was then known, to refuse to grant a protection visa to the appellant. 2 The appellant is a citizen of Bangladesh who arrived in Australia on 21 July 2005. He entered on a temporary business visa. On 29 August 2005 the appellant lodged an application for a protection visa. A delegate of the first respondent refused the application on 31 August 2005. On 21 September 2005 the appellant applied to the Tribunal for a review of that decision. On 10 October 2005 the Tribunal invited the appellant to attend a hearing on 7 December 2005. The appellant attended the hearing and was assisted by a Bengali interpreter. He gave oral evidence. 3 The appellant claimed to fear persecution on the basis of his political opinion. He claimed that he was a supporter of the Awami League, although he did not claim to be a member of the League. He described an incident which he said occurred on 19 January 2005 in front of his restaurant. A rival political party (the BNP) had organised a meeting in a public area outside the restaurant. A fight broke out between members of the Awami League and some of those attending the BNP rally. Objects were thrown. Someone standing in front of the restaurant threw a brick which struck a BNP leader in the head. That leader later died as a result of the injury sustained. A rumour circulated that the appellant had thrown the brick. A crowd gathered and his restaurant was burnt down. He fled to Dhaka where he remained for almost four months. During this time an uncle made arrangements for him to travel to Dubai. He left for Dubai on 4 May 2005 and later came on to Australia. He claimed to have had no part in the rally or the brick throwing incident but feared being arrested, tried and sentenced for murder should he return to Bangladesh. 4 The Tribunal was not satisfied that the appellant faced a real chance of Convention related persecution in Bangladesh. It held that his fear of persecution was not well founded. The Tribunal said that it could not accept the substantive claims of the appellant on the basis of the scant material before it. The Tribunal could find no independent evidence of the public events to which he referred and found it reasonable to assume that what ultimately became a local political assassination would leave some trace in the Bangladeshi media and even amongst foreign reporters. 5 The Tribunal found it implausible that the appellant, who was not even involved in the confrontation, would have been the only person "imputed" to have thrown the brick. Moreover, the appellant failed to argue that his claimed predicament had anything to do with the Convention. His claimed identification with the Awami League was not the essential and significant factor in the matter but rather it was the assumption that the brick came from where the appellant was standing. The appellant provided no evidence of facing persecution in Bangladesh for reasons of his political opinion alone, that is, his opinion as expressed, imputed or manifested before the alleged murder or in any other way independent of it.