SZACX v Minister for Immigration & Multicultural & Indigenous Affairs

The present notice of motion 12 By notice of motion filed on 9 December 2003, the appellant moved to set aside my order made on 13 November 2003. In support of his motion, the appellant relied on his affidavit sworn 8 December 2003, relevantly as follows: '... At the fix hearing day I was sick, I was in medical rest. I have medical certificate. I am unrepresented because I have no money to pay the barrister fee. I have financial hardship. I have an arguable case. I do not know legal submission. But the RRT decision overlook and ignore my all claims. ... ' 13 I listed the motion for directions on 29 January 2004. The appellant was informed, by letter, of that hearing, but did not then appear. However, on 29 January 2004 I said: 'The [appellant's] affidavit goes on to state and I quote: I have an arguable case. I do not know legal submission, but the RRT decision overlook and ignore my all claims. [sic] The purpose of this directions hearing was to inform the [appellant] who although unrepresented appears to appreciate that he has to establish an arguable case, that it will be necessary for him at next week's hearing of the notice of motion to demonstrate to the court the basis upon which he contends that he has an arguable case in addition to the very general statements made in the passage I've cited from his affidavit. Unfortunately, the [appellant] is not here today, however, I will request my associate to obtain a copy of today's transcript and forward it to the address provided by the [appellant] in his notice of motion.' 14 The transcript was forwarded to the appellant. However, although the appellant appeared before me today, no further specific evidence, material or other information was adduced by the appellant. 15 In order to deal with the notice of motion, it will be necessary to consider the reasoning of the RRT and of Raphael FM.

Decision of the RRT 16 The RRT set out the claims made by the appellant. It quoted extracts from the appellant's protection visa application, specifically recording his claim that he is 'politically a BNP [Bangladesh National Party] youth leader in Bangladesh', his fear of the 'Awami League, their terrorist associates and current administration' and his claim that the respective authorities in Bangladesh were highly corrupted. 17 Supplementary material received from the appellant was then set out by the RRT, including his statutory declaration dated 18 September 2002, translated copies of a claimed Testimonial from the Headmaster and Secretary of the Brahmanbhita Union High School dated 30 April 2001; a claimed letter from the Dhipur Union Council dated 24 September 1989; a claimed reference from the Bangladesh Jatiyatabadi Chhatradal Central Committee (Munshiganj District) and a claimed extract from the Registry of Birth dated 25 April 2001. 18 The RRT then summarised the appellant's evidence at the hearing on 5 November 2002. The RRT records the appellant's evidence that he bought a passport in the name of Anwar Morshed Chowdhury for approximately $A15,000 and then details the appellant's association with the BNP. The RRT set out the appellant's evidence regarding false charges that the appellant claimed were laid against him and the appellant's belief that although the BNP was currently in power in Bangladesh, he could not expect to receive protection from the current government as it was in a state of 'mini-marshal law', and that it would be impossible for him to relocate. 19 The RRT then set out independent country information, which, it held, contradicted the evidence of the appellant with regard to the current political situation in Bangladesh and further stated that official documents, such as arrest warrants and police checks, were easily and cheaply obtained in Bangladesh. 20 In its findings and reasoning, the RRT accepted the appellant's claim that the passport he used to enter Australia was not his own, but that the appellant was nevertheless a national of the People's Republic of Bangladesh. The appellant's association with the BNP youth wing since 1990 was also accepted. 21 The RRT further found that the appellant became involved in a domestic dispute between his uncle and aunt, that the appellant took the side of his uncle, supporting him in his court appearances, and that there was a subsequent incident on 14 May 2000, whereby three people called the appellant out of court, showed him a pistol and told him to withdraw his support for his uncle in the court case or they would kill him. 22 However, the RRT rejected the appellant's claim that he had been targeted by the Awami League because of his role in the BNP youth wing. The RRT found that the incident on 14 May 2000 was not motivated by a Convention-related reason. The RRT also refused to accept the appellant's claims, firstly that false charges had been laid against him at all, and secondly, that any such charges were undertaken at the instigation of the Awami League. In any event, the RRT found that the Bangladesh court system was sufficiently independent that it could be relied upon to provide protection for those falsely charged, even if a governing party's activists persisted in filing false charges. 23 The RRT then considered the risk of future harm to the appellant, noting that the BNP now forms the Government in Bangladesh, and was satisfied that the appellant would receive the support and protection of his party if he were to return to Bangladesh either now or in the foreseeable future. The RRT considered the appellant's limited political profile, previous freedom from threats and harm, both when the Awami League was in power and in the appellant's 27 months in Australia, and the absence of any particular political enemy within the Awami League. For these reasons, the RRT rejected the appellant's claim that it would be impossible to relocate in Bangladesh and was satisfied that the appellant was able to return home without there being a real chance he would be harmed for any Convention-related reason. 24 The RRT accepted the appellant's claims that general security and incidence of generalised violence are considerably different in Bangladesh when compared with Australia, but held that the appellant had not claimed that this had affected him personally, nor provided any reason to suggest there was a real chance it would affect him for a Convention reason if he returned to Bangladesh either now or in the future. Further, the RRT noted that there was no claim that the appellant's relatives had experienced any difficulties in this regard. 25 The RRT thus concluded that it was not satisfied the appellant was a person to whom Australia has protection obligations under the Convention. Accordingly, the RRT found that the appellant did not satisfy the criteria set out in s 36(2) of the Migration Act 1958 (Cth) for a protection visa.

Decision of Raphael FM 26 In his Reasons, Raphael FM re-stated the claims and submissions made by the appellant to the RRT and the RRT's rejection of the appellant's claim of a genuine fear of persecution. Raphael FM then set out the appellant's submissions to the Court, including his claims that he had a genuine fear of persecution, that he did not believe he could relocate to another part of Bangladesh, that the RRT did not understand the gravity of danger which he faced from the Awami League, that he did not believe he would receive justice from the judiciary in Bangladesh, and that the RRT did not give significant importance to the nature of the violence that exists in Bangladesh. 27 Raphael FM then said: '9. It will be evident from the nature of these representations that the applicant has misunderstood the powers of this court. What he appears to be seeking is a further review of the merits of his claim because he does not agree with the conclusions reached by the [RRT] however, he does not indicate that the [RRT's] decision was reached in a manner which establishes jurisdictional error on its part.' 28 Raphael FM recorded the RRT's acceptance of the appellant's association with the BNP youth wing, and its acceptance of the incident on 14 May 2000, when the appellant was called out of court and threatened with a pistol, which the RRT had found was not an incident motivated by a Convention-related reason. Raphael FM found that the RRT's findings were open on the evidence. 29 Adopting the written submissions of counsel for the respondent, Mr Reilly, Raphael FM said: '12. …It is apparent that the applicant was unsuccessful because of the view the RRT took of the facts, in particular its rejection of the applicant's claims to fear harm from the Awami League and its finding that the incident of 14 May 2000 was not motivated by any Convention reasons. The [RRT] correctly looked to the motivation of those threatening the applicant on this occasion ... . Its conclusion that they were [not] motivated by a Convention reason necessitated the failure of the applicant's claim. The court cannot review the merits of the [RRT's] decision ... .' 30 In his submission, Mr Reilly had submitted: '4. The [RRT] accepted that the Appellant had used another person's passport to enter Australia: RD 97.7. The [RRT] also accepted that the Appellant was associated with the youth wing of the BNP: RD 98.1. The [RRT] accepted that the Appellant had been threatened as he claimed on 14 May 2000, but not that this had anything to do with the AL [Awami League]. Rather, the [RRT] concluded, based on the Appellant's own evidence, that this was an attempt to intimidate him for supporting his uncle: RD 98.7. The [RRT] did not accept that the Appellant was wanted on false charges from the AL as he claimed: RD 98.8-99.4. Further the [RRT] found that even if, contrary to its findings, the Appellant had been targeted by the AL he could access state protection in Bangladesh: RD 100.4. The [RRT] noted that the BNP were now in power in Bangladesh, and having regard to independent country information rejected the Appellant's claims to have any well founded fear of future persecution from the AL or fundamentalists in Bangladesh: RD 100.6-102.2. 5. It is apparent that the Appellant was unsuccessful because of the view the [RRT] took of the facts, in particular its rejection of the Appellant's claims to fear harm from the AL, and its finding that the incident of 14 May 2000 was not motivated by any Convention reason. The [RRT] correctly looked to the motivation of those threatening the Appellant on this occasion: Ram v MIEA (1995) 57 FCR 565 (FC) at 568 per Burchett J; Applicant A v MIEA (1997) 190 CLR 225 at 240-242 per Dawson J, at 284 per Gummow J. Its conclusion that they were not motivated by a Convention reason is a finding of fact. The Court cannot review the merits of the [RRT's] decision: MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the [RRT] making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]. The [RRT's] findings were open to it for the reasons it gives. 6. Further, the [RRT's] conclusion, based on independent country information, that the Appellant could access effective protection in Bangladesh is again a factual matter for the [RRT]. It is unlikely that refugee status is to be granted to a person whose account, although plausible and coherent, is inconsistent with the [RRT's] understanding of conditions in that person's country of nationality: Chan v MIEA (1989) 169 CLR 379 at 428 per McHugh J. The [RRT's] finding that the existence of state protection in Bangladesh was sufficient to render the Appellant's fears not well founded is a factual matter for it eg A v MIMA (1999) 53 ALD 545 (FCA/FC) at [54]. It is not necessary for it to find that the state can guarantee protection: MIMA v Prathapan (1998) 86 FCR 95 (FC) at 104F. In the absence of a finding that the state is unable or unwilling to protect the Appellant, he cannot establish a well founded fear of persecution: Applicant A at 233 per Brennan CJ, 257-8 per McHugh J.' 31 Accordingly, as Raphael FM was unable to find any grounds upon which the application could be reviewed, it was dismissed with costs.

Conclusions on the notice of motion 32 Plainly, O 52 r 38A(2) confers upon the Court a discretion, but one to be exercised judicially, to set aside a dismissal order, or to refuse to set it aside. 33 Ordinarily, the main considerations to be taken into account in the exercise of this judicial discretion are (a) whether the appellant has satisfactorily explained his absence from the hearing on 13 November 2003; and (b) whether the appellant has demonstrated that, if the appeal were to proceed, he has an arguable case that the appeal should be allowed. 34 As to (a), I am far from convinced that this element has been established here. However, since I am not satisfied that (b) is established, I need not pursue this factor further. 35 Has the appellant established an arguable case? 36 The appellant's grounds of appeal (set out above) were apparently drafted by a professional, but are so generally expressed that they are incapable of specific application here. 37 In the course of the hearing of the motion, I drew attention to the principle explained by the High Court in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] 197 ALR 389 at [27], that is, that if an important element of a claim was not addressed, a party could be denied natural justice. For this purpose, the claims made here must be examined and consideration given to the RRT's approach to them. However, in my opinion, an examination of those claims shows, beyond any reasonable argument, that all important claims made by the appellant were in truth addressed by the RRT. 38 It must follow that the motion fails.

Order 1. The motion is dismissed, with costs. 2. The time for filing any appellate process shall not commence to run until 17 February 2004.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Solicitor for the Applicant: The appellant appeared in person

Solicitor for the Respondent: Blake Dawson Waldron