SZBCU v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court handed down on 10 January 2005: SZBCU v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 29. The learned Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('RRT') handed down on 9 July 2003. The RRT had affirmed a decision of a delegate of the respondent ('the Minister') not to grant the appellant a protection (class XA) visa. 2 The appellant is a citizen of Bangladesh. He left that country legally on or about 7 November 1998 and arrived in Australia on or about 31 July 1999. 3 The appellant lodged an application for a protection visa on 1 September 1999. He made what were described by the RRT as 'only very vague claims' in that application, but promised a detailed statement and supporting documents, none of which was forthcoming. The application was rejected by a delegate on 1 October 1999 and that decision was affirmed by the RRT in a decision handed down on 2 May 2002. 4 The appellant again applied for a protection visa on 24 May 2002, apparently on the basis that his previous application was invalid as it did not contain any specific claims as to why Australia owed him protection obligations. Be that as it may, the second application was accepted by the delegate as valid. However, the delegate refused to grant a protection visa and, as already noted, that refusal was affirmed by the RRT. 5 The appellant's claims, as recorded in a statutory declaration, were that he feared persecution in Bangladesh by reason of his support of the Muslim League and of a political party, the BNP. His support for these political parties was said to have prompted the Awami League to look for him in order to kill him. In particular, according to the statutory declaration, a group of Awami League supporters went to the appellant's home in November 1998 looking for him. When they were unable to find him, they tortured his children and destroyed his business premises. These events led him to leave the country in order to save his life. 6 On 20 June 2002, the delegate wrote to the appellant setting out a number of matters that the delegate said might lead him to reject the application. These matters concerned independent country information relating to Bangladesh that cast doubt upon the appellant's claims. Apparently no response was made to this letter. 7 Following the delegate's decision, the RRT wrote to the appellant on 16 April 2003 advising him that it was unable to make a decision in his favour on the basis of the material he had supplied. The letter invited the appellant to attend the hearing and to give oral evidence and present arguments in support of his claims. The hearing was scheduled for 12 June 2003. The appellant was advised that if he did not attend the hearing and an adjournment was not granted, the RRT might proceed to make a decision on his case without further notice. 8 On 24 April 2003, the appellant advised the RRT that he would attend the hearing. However, he did not do so. Nor did he contact the RRT to explain his failure to attend. In these circumstances, the RRT decided to proceed pursuant to s 426A(1) of the Migration Act 1958 (Cth) ('Migration Act') to make its decision without taking any further action to enable the appellant to appear before it. 9 Although the appellant did not appear before it, the RRT gave detailed reasons for rejecting the appellant's application for review of the decision to refuse him a protection visa. The findings made by the RRT include the following: