SZLOP v Minister for Immigration and Citizenship [2008] FCA 1074

FEDERAL COURT OF AUSTRALIA

SZLOP v Minister for Immigration and Citizenship [2008] FCA 1074

NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 SZLOP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD421 of 2008

REEVES J

24 JULY 2008

DARWIN

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD421 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLOP

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: REEVES J

DATE OF ORDER: 24 JULY 2008

WHERE MADE: DARWIN

THE COURT ORDERS THAT:

1. The appeal be dismissed. 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 NSD421 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLOP

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: REEVES J

DATE: 24 JULY 2008

PLACE: DARWIN

REASONS FOR JUDGMENT

INTRODUCTION 1 This is an appeal against the judgment of Federal Magistrate Orchiston delivered on 7 March 2008, which dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal's decision was delivered on 2 October 2007. It affirmed a decision of a delegate of the first respondent to refuse to grant a protection visa to the appellant.

BACKGROUND – SUMMARY OF FACTS 2 The appellant is a citizen of Bangladesh. He was born in that country on 16 January 1972. He arrived in Australia on 19 December 2001 as the holder of a temporary business visa. On 8 January 2002, he lodged an application for a protection (class XA) visa with the first respondent. That application was refused by a delegate of the first respondent on 22 March 2002. 3 On 17 April 2002, the appellant applied to the Tribunal for a review of that decision. On 17 June 2003, the Tribunal affirmed the delegate's decision. The appellant unsuccessfully sought judicial review of that decision in the Federal Magistrates Court and, on appeal, in this Court. When his appeal was dismissed on 5 August 2005, he then sought special leave to appeal to the High Court of Australia. Ultimately, on 28 February 2007, the High Court quashed the Tribunal's decision by consent and ordered it to reconsider the appellant's application according to law. 4 On 23 August 2007, a differently constituted Tribunal ('the Tribunal') conducted a hearing which the appellant attended and at which he gave oral evidence and presented arguments. 5 The appellant lodged a statement dated 8 January 2002 with his visa application which set out the basis of his claim to fear harm. In short, the appellant claimed that his father was a 'renowned trade union leader' in Bangladesh who had been involved in the War of Liberation in 1971 and after the war, had been a supporter of, and very close to, Bangabandhu Sheikh Mujibur Rahman. Thereafter his father was heavily involved in Awami politics. The appellant went on to claim that Bangabandhu Sheikh Mujibur Rahman was brutally murdered on 15 August 1975 as a group of retired army officers took control of the country. His father was arrested and remained in gaol for a number of years. After his release from gaol, he claimed that his father was involved as an organiser for the Awami League and this resulted in a lot of political enmities. 6 The appellant claimed that during his secondary education he became actively involved with the Charta League, which is the student wing of the Bangladesh Awami League, and eventually became the Vice President of the Charta League Committee at the secondary college he attended. After his secondary schooling, he undertook a Bachelor of Arts degree at Tejgaon College where he was also actively involved in politics and became the president of the Tejgaon College Charta League. He claims to have led many demonstrations against the Bangladeshi National Party ('BNP') Government of the day. He also claims to have worked for a candidate in the 1996 parliamentary elections and, while that candidate was unsuccessful, the Awami League was successful in forming the government of Bangladesh. Thereafter, he claims he became one of the leaders of the Awami League in the region where he lived and was elected joint secretary of the Bangladesh Awami League Matlab Thana Branch in 1998. In 1999 he claims he was elected the executive member of the Chadpur District of the Awami League. 7 In July 2001, the Awami League transferred power to a caretaker government and in October 2001, after parliamentary elections were held, the BNP was successful in forming government. During that election, the appellant claims to have worked for one of the Awami League candidates. After the election on 2 October 2001, the appellant claims his house was ransacked and looted and one of his brothers was beaten without mercy. He claims that after the BNP came to power, Awami League leaders and activists were oppressed and tortured and that many of them left the country. In late 2001, after going into hiding, the appellant claims that a number of false charges were laid against him. He was able to obtain a visa to come to Australia but he claimed that if he were to return to Bangladesh, he would be persecuted to the point where his life would be at risk.