S411 of 2003 v Minister for Immigration - [2007] FMCA 135

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S411 OF 2003 v MINISTER FOR IMMIGRATION & ANOR

[2007] FMCA 135

MIGRATION – RRT decision – Bangladeshi claiming persecution as member of Jatiya Party – 1997 decision of Tribunal – application for orders nisi remitted from High Court – no grounds for relief found.

Federal Court Rules (Cth), O.51A, 51A r.5, 5(1), 5(2)
Federal Magistrates Act 1999 (Cth), s.43(2)(b)
Federal Magistrates Court Rules 2001 (Cth), r.1.05(2)
Migration Act 1958 (Cth), ss.36(2), 474, 478, 483A
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 cl.8
Migration Litigation Reform Act 2005 (Cth)

Migration Reform Act 1992 (Cth)

Applicants S1573 of 2003 v Minister for Immigration & Anor [2005] FMCA 47
Callover of 20 Immigration Matters - Sydney [2004] HCATrans 27
SZAWW v Minister for Immigration [2003] FMCA 479
SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 368
SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416

Applicant:

APPLICANT S411 OF 2003

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2361 of 2005

Judgment of:

Smith FM

Hearing date:

29 January 2007

Delivered at:

Sydney

Delivered on:

29 January 2007

REPRESENTATION

Counsel for the Applicant:

Applicant in person

Counsel for the First Respondent:

Mr J Smith

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

The application for orders nisi filed on 16 July 2003 is refused.
The applicant must pay the first respondent’s costs in the sum of $4,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2361 of 2005

APPLICANT S411 OF 2003

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The matter before me today has a history which might appear astonishing for proceedings seeking judicial review of administrative action, which are usually thought to deserve expedition. However, it illustrates the situation facing federal courts in the late 1990s and in more recent years, when a flood of judicial review applications in relation to immigration decisions were filed in the High Court, the Federal Court and this Court. Fortunately, the procedures of this Court, which has become the normal first instance Court for judicial review of migration decisions, have enabled it to reduce waiting periods between filing and determination so that, for example, new matters coming into my docket are usually finalised within six to seven months from their commencement, and often much quicker. This outcome has been achieved while this Court has also been dealing with a huge backlog, including the present case.
The present application seeks relief in relation to a decision of the Refugee Review Tribunal made on 23 January 1997, which affirmed a decision of a delegate made on 31 March 1994 to refuse to grant a protection visa to the applicant. It was commenced with a draft order nisi being filed in the High Court of Australia on 16 July 2003, supported by two affidavits. In one affidavit the applicant refers to being “the party of lie class action”, which the Minister’s Counsel suggests I should take to be a reference to the applicant prior to 2003 having been a represented party in the previous long‑running Ms Lie High Court proceeding. That may well be a reasonable assumption, given the thousands of people who were represented parties in that matter.
On that assumption, the applicant had pending litigation in relation to the decision under review at the time of the commencement of the “privative clause” amendments to the Migration Act 1958 (Cth) (“the Migration Act”), so that the present matter is not subject to those provisions (see cl.8 of Sch.1 of Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), and SZAWW v Minister for Immigration [2003] FMCA 479 at [4], Applicants S1573 of 2003 v Minister for Immigration & Anor [2005] FMCA 47 at [4]‑[8], SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 416 at [12], and SZDLR v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 144 FCR 368 at [33]).
The application for an order nisi remained in the High Court, and was one of twenty immigration matters which were called‑over before Heydon J on 16 February 2004 (see Callover of 20 Immigration Matters - Sydney [2004] HCATrans 27 at page 17). On that occasion, the applicant appeared in person and applied for his case to be remitted to this Court. The Minister’s representative opposed that application, telling his Honour that he anticipated that a more speedy hearing would be achieved in the Federal Court because at that time there was an 18 months’ delay in reaching a hearing in this Court. Heydon J accepted that submission, and therefore made his “usual order” remitting the application for order nisi to the Federal Court. An order to that effect was entered on 16 April 2004. His Honour’s order said: “the further proceedings in this application (including any application for the enlargement of time) be remitted to the Federal Court of Australia …”. Since I am dismissing the application on its substantive merits, I do not need to examine the import of his Honour’s reference to “any application for the enlargement of time”.
The applicant’s file then reached the Federal Court. In November 2004, the applicant was sent a letter by the Federal Court Registry telling him that that Court was proposing to consider whether there was an arguable case, on the basis of written material and without any oral hearing. The applicant was invited to lodge a written submission on the question of whether the Court should make an order nisi no later than 10 December 2004. The applicant did not file a submission before that date, but did file an “applicant’s argument” on 9 March 2005, and I will consider its contents below. This seems to have stopped the Federal Court dealing with the matter in chambers. Instead, by order of Emmett J on 5 August 2005, it was ordered: “the matter be transferred to the Federal Magistrates Court”. The documents in the file before me do not explain the reasons for that order. After its transfer into this Court, the matter was placed in a call‑over before a registrar in October 2005, and was then set down for hearing before me today, which was the first available date in my docket at that time.
The Minister’s Counsel submits that this Court had jurisdiction to receive such a transferred matter under then s.483A of the Migration Act. He also accepted that the Federal Court rules in O.51A would apply to the remitted matter, in the absence of this Court having rules which specifically address applications for orders nisi remitted by the High Court of Australia (see Federal Magistrates Act 1999 (Cth) s.43(2)(b) and Federal Magistrates Court Rules 2001 (Cth), r.1.05(2)). Under O.51A r.5 a remitted application for an order nisi is normally determined on the merits of the applicant’s entitlement to final relief by way of Constitutional writs, and not whether he has an arguable case. The preliminary issue is only addressed if the Court makes an order under r.5(2).
In the present case, no order under r.5(2) was made in the Federal Court before the matter was remitted to this Court, and no order under that rule was sought nor was made in this Court. Given the above chronology, and the implications of the new time limits introduced by the Migration Litigation Reform Act 2005 (Cth), I consider that it is not appropriate for me to limit the nature of my consideration to the preliminary issue. I shall therefore allow r.5(1) to take effect, and have today addressed the final merits of the applicant’s entitlement to relief in relation to the Tribunal’s decision which is the subject of the proceeding.
The history of the applicant’s application for a protection visa is as follows. The applicant arrived in Australia in March 1992. He did not apply for recognition as a refugee until 9 November 1993, when he made an application for “refugee status”. At that time, this was the precursor to applying for a relevant entry permit for an on‑shore applicant. While his matter was subsequently before the Tribunal, his application was deemed to be an application for a protection visa, pursuant to provisions of the Migration Reform Act 1992 (Cth).
There is no evidence before me as to the contents of the application for a protection visa, other than the information recorded in a decision record of a delegate signed on 31 March 1994 and explaining a decision that the applicant “is not a refugee”. It is unnecessary for me to examine the delegate’s reasoning.
The applicant appealed to the Refugee Review Tribunal, where he was represented by Parish Patience, Solicitors. Neither party has put before me any evidence as to that proceeding, other than a decision and statement of reasons of the Refugee Review Tribunal dated 23 January 1997. This records a decision that: “the Tribunal is not satisfied that the Applicant is a refugee, and affirms the decision not to grant a protection visa”.
In its statement of reasons, the Tribunal referred to the evidence which was before it as to the applicant’s refugee claims. It referred to a hearing attended by the applicant, and it referred to general country information which it consulted.
The applicant’s claim to be a refugee was based upon his becoming a member of the Jatiya Party when he was at university in Bangladesh. He claimed that his father was a general secretary of a branch of that party, and working for a government agency at a time when Bangladesh was governed by President Ershad as the national leader of the Jatiya Party. The applicant claimed that he and other members of the Jatiya Party became targets of systematic persecution following the downfall of President Ershad in December 1990, in particular by members of the Bangladeshi National Party which then took power for some years.
The Tribunal recorded the applicant’s history which he presented at the hearing:
At the Tribunal hearing the Applicant gave a different account of his difficulties after the fall of the Ershad regime. He states that the family home in [city] was vandalised and its occupants threatened. The family therefore moved to [place] where they remained for three or four months. They faced no difficulties in [place]. On returning to [city] the police detained the Applicant for ten days. He appeared in court on charges of possessing firearms. A hearing date was set down and the Applicant was returned to jail. Some members of the Jatiya Party pressured the police to release the Applicant. After three months the Applicant was again detained as he was attending an illegal meeting of the Jatiya Party. He was not charged and did not appear in court, but he was bashed while being questioned by the police. He was released from jail in December 1991 and this release was arranged by Jatiya Party members. The Applicant claims that the police were questioning him about the whereabouts of senior Jatiya Party officials. He claims that he was still working at the Drug Rehabilitation Centre at this time and worked there up until his departure from Bangladesh. He claims that his workplace arranged for him to attend a conference in Australia in March 1992. The Applicant claims that prior to this he travelled to India in July 1991 where he stayed with relatives for thirty‑five days.
The Tribunal noted that there were some inconsistencies between this account and previous claims by the applicant to the delegate, but its reasoning ultimately did not give any significance to those inconsistencies.
The Tribunal said that it specifically put to the applicant significant changes which had occurred in Bangladesh since his arrival in Australia:
The Applicant was asked at the hearing if he was aware of the political changes which have occurred in Bangladesh since his departure in March 1992. He responded that he was aware that after the elections held in June 1996 the Awami League formed a government with the Jatiya Party as the minor coalition partner. The Applicant was asked if, in the light of these political changes and in view of his family connections with senior members of the Jatiya Party, he was still fearful of returning to Bangladesh. He responded that he remained fearful because of the outstanding charges against him, and stated that if former President Ershad could not be released under the new government, then he could not possibly be assisted either.
The Tribunal’s reasons referred to a number of supporting documents being submitted by the applicant, and I have no reason from its reasons to think that they were not properly considered. The Tribunal said that it also asked the applicant to explain why he waited for more than a year after his arrival in Australia to lodge his application for refugee status. The Tribunal said that it also put to the applicant other general country information, concerning the situation of members of the Jatiya Party following the fall of President Ershad to the applicant.
Under the heading “Findings and Reasons”, the Tribunal accepted that the applicant may have been a member of a branch of the Jatiya Party from 1986 until March 1992, and that his father had close connections with senior politicians including the former President Ershad. It referred to the general situation in Bangladesh and how that had changed following the fall of the Ershad regime. It expressed a general conclusion:
In spite of the inconsistencies in the Applicant’s evidence regarding his alleged detention by the authorities the Tribunal is prepared to accept that he may have been detained and questioned regarding his father’s whereabouts and the whereabouts of other senior Jatiya Party officials. However, it is an assessment of the future risk to the Applicant which determines whether or not he can be regarded as a refugee. For the following reasons the Tribunal does not find that the current situation in Bangladesh, with due regard to the Applicant’s past experiences, will cause the Applicant to face a real chance of persecution for political reasons on his return to Bangladesh, and in the reasonably foreseeable future there.
The Tribunal gave three reasons for that conclusion. These included matters specifically to the applicant’s claims, but also that “significant changes have occurred in the political situation in Bangladesh since the Applicant’s departure in 1992”. The Tribunal thought that the change in government “significantly reduces the chance of the Applicant facing persecution for his political opinions on his return to Bangladesh to one that is extremely remote”. It thought that, if charges were outstanding which were fabricated, then “the change in government effectively removes the reason for any such fabricated changes to remain in existence”. It thought that, if they were not fabricated, then he would be able to defend himself according to legal processes.
The essential reason for the Tribunal’s conclusion, therefore, was that the chance of the applicant facing persecution, including threats and violence at the hands of opposing political members of opposing political parties, had been reduced “to one that is remote”. It concluded that “the Applicant’s fears of persecution are not well‑founded and he cannot be regarded as a refugee warranting international protection”.
I consider that the Tribunal’s decision did address the correct legal issue which was presented to it by the law as it stood at that time, which was whether “the applicant is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol” in terms of s.36(2) of the Act.
I can see no basis upon which the applicant has made out any entitlement to writs of mandamus or certiorari in relation to the decision of the Tribunal made in 1997. I therefore conclude that it is appropriate to dismiss his application for an order nisi and refuse him any relief.
The applicant’s grounds for seeking that relief, as set out in his draft order nisi, contain a list of unparticularised allegations of jurisdictional errors and other legal errors which might entitle relief if they were made out. They allege a failure to follow proper procedure, error of law, no evidence to justify the decision, denial of natural justice, failure to address the correct legal question, an incorrect understanding of the law, and other unparticularised allegations. However, I can see no substance in any of those grounds.
The applicant’s written argument filed in March 2005 follows a precedent which is familiar in these cases. It contains arguments which are unintelligible, as well as a general allegation seeking to rely upon the “Muin and Lee’s case”. However, no substance in that argument is shown in the evidence filed by the applicant in support of his application. I can see no evidence of any favourable material which the applicant was misled into thinking the Tribunal would take into account, and which it did not take into account. Nor can the applicant point to any significant material adverse to his case which was not fairly put to him in the course of the hearing. These arguments, and the other arguments found in the applicant’s written argument, do not in my opinion have any substance.
The applicant attended today. His submissions were that his life is still at risk if he returned to Bangladesh, in particular due to events which have occurred in Bangladesh in 2006 which have led to the cancellation of an election due for 2007. He suggested he had press reports to explain this to me. However, I did not receive any such material into evidence, since in my opinion it would be irrelevant to the applicant’s entitlement to relief by way of judicial review directed at a 1997 decision of the Tribunal.
As I have suggested to the applicant, if he considers that he now has new claims to be a refugee he must put them to the Minister in support of a pertinent submission seeking exercise of the Minister’s discretions to entertain fresh refugee claims.
I was not able to identify from anything that the applicant put to me any arguable ground for giving him relief in relation to that decision. I therefore dismiss the application before me.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 19 February 2007