SZAHH v Minister for Immigration
[2005] FMCA 819
•6 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAHH & ORS v MINISTER FOR IMMIGRATION | [2005] FMCA 819 |
| MIGRATION – Visa – protection (class XA) visa – Refugee Review Tribunal – application for review of a decision of the RRT affirming a decision of a delegate of the Minister not to grant a protection visa – where applicants are citizens of Bangladesh – no reviewable error. PRACTICE & PROCEDURE – Notice of Objection to competency – privative clause decision – where application filed more than 28 days after the applicant was notified of the decision – abuse of process where application previously heard by a Federal Magistrate – where leave to appeal to the High Court refused – costs – indemnity costs – circumstances justifying order – litigation guardian – where one applicant is a minor – where appropriate to dispense with the appointment of a litigation guardian. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.65(1),474, 477 |
| Colgate Palmolive Pty Ltd v Cussons Ltd (1993) 46 FCR 225; 118 ALR 248 SZAHH & Anor v MIMIA [2003] FMCA 493 SZAHH & Ors v MIMIA [2005] HCA Trans 135 |
| First Applicant: | SZAHH |
| Second Applicant: | SZAHI |
| Third Applicant: | SZAHJ (a minor) |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 817 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 6 June 2005 |
| Date of Last Submission: | 6 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 6 June 2005 |
REPRESENTATION
| The Applicant: | Applicant SZAHH in person |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
I dispense with the requirement for a litigation guardian in respect of the third Applicant.
That the application is dismissed.
That the application is not competent as it was not made within 28 days of the Applicants having been notified of the handing down of the decision by the Refugee Review Tribunal.
That the Applicants are restrained from filing any further application in this Court seeking to review the decision of the Refugee Review Tribunal without leave of the Court.
That the first and second Applicants are to pay the Respondent’s costs on an indemnity basis fixed in the sum of $5,800.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 817 of 2005
| SZAHH |
First Applicant
And
| SZAHI |
Second Applicant
And
| SZAHJ (a minor) |
Third Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Application
This is an application for a review of a decision of the Refugee Review Tribunal made on 30 January 2003. The Tribunal affirmed a decision of a delegate of the respondent Minister not to grant a protection visa to the three applicants.
The applicants are husband, wife and son. The third applicant SZAHJ is the son of the other two applicants. He is a child. He has no independent claim and his claim relies on the claim of his parents and particularly his father SZAHH. The third applicant has filed no documents in these proceedings and has not sought to take any part in these proceedings. This is hardly surprising as he is only a child.
I propose to dispense with the requirement that a litigation guardian by appointed for him. The applicants are citizens of Bangladesh. The first applicant arrived in Australia in February 1992 on a student visa.
He returned to Bangladesh early in 1997 and remained there for approximately one month. During that time he married the second applicant. He returned to Australia on 13 April 1997. The second applicant arrived in Australia on a student visa on 11 June 1997.
Their child, the third applicant, was born in Australia on
20 March 1999. On 1 May 2000 they lodged an application for a protection visa. A delegate of the Minister for Immigration refused that application on 5 June 2000. On 15 June 2000 the applicants applied for review of that decision. The Refugee Review Tribunal conducted a hearing of that claim which the applicant attended. His advisor also made a written submission. The hearing took place on 20 June 2002. The applicant gave oral evidence on that occasion. The Tribunal made its decision on 30 January 2003 and handed that decision down on
25 February.
The Tribunal was not satisfied that the applicants met the criterion set out in s.36(2) of the Migration Act for a protection visa. I note that the Tribunal was not satisfied as to the credibility of the applicants' claims. The applicant claimed that while at a university in Dhaka in 1987 he became active in a wing of a political party Jamaat I Islami. He went to Saudi Arabia to study Arabic in 1989 and remained there until 1992.
He continued his political activities there. He said he was targeted by political opponents from the BNP which was the governing party in Bangladesh at the time. He said that they fabricated a criminal charge against him. This charge he said was revived when there was a change of Government and the Awami League came to power.
The applicant obtained a visa to study in Australia in 1992. He visited Bangladesh on several occasions and claims that he was informed in both 1997 and 1999 that the police were searching for him in respect of this charge which he said was fabricated.
The Tribunal noted that the applicant was unable to provide any specific instance of harm to him apart from an occasion when he and some other students were assaulted. The Tribunal noted that there was no evidence in the fabricated charge against the applicant other than his own assertions. The Tribunal was prepared to accept that the applicant may have been a member of the political group known as Chattra Chabir between 1987 and 1992. The Tribunal was prepared to accept that he was a supporter of Jamaat I Islami. The Tribunal noticed that there was not enough evidence other than his assertion that he was a well-known political activist to allow it to find that the applicant held any leadership position in either group. The Tribunal relied on country information to find that it was not satisfied about the applicant's claim of organising political demonstrations in Saudi Arabia. The Tribunal did not accept as credible the claim that the applicant returned to Bangladesh in 1997 for political reasons.
The Tribunal did not find credible that the applicant's claim of political opponents from 1992 in Saudi Arabia or Bangladesh were still looking for him at the time of the hearing. The Tribunal found that the applicant was not and had not been ever a person of adverse interest with Bangladeshi authorities. As I said the Tribunal affirmed the decision not to grant protection visas.
The applicant applied to the Federal Magistrates Court for a review of that decision on 24 March 2003. A description of the subsequent litigation is set out in an affidavit of Melissa Inga Gwendelyn Asimus sworn on 13 May 2005. I asked the applicant about those proceedings and he agreed that they had happened. He said that his current application set out new grounds.
The history so far as it is relevant is that on 30 October 2003 in the Federal Magistrates Court Raphael FM dismissed the applicant's application. The citation to this decision is [2003] FMCA 493.
The applicant has then appealed to the Federal Court. This was done on 13 November 2003 in proceedings N1838 of 2003. On 18 March 2004 in the Federal Court Stone J dismissed the appeal. Nothing daunted, the applicant then sought special leave to appeal to the High Court on 8 April 2004.
On 10 March 2005 Gummow and Kirby JJ dismissed the application for special leave. The media neutral citation is (2005) HCA Trans 135. Despite the set back by the High Court of Australia the applicant then commenced these proceedings in the Federal Magistrates Court on 5 April 2005. The applicant said that these new proceedings set out new grounds. The applicant said that a friend helped him to prepare these grounds. It would appear that the applicant's friend has been rather busy in assisting people because this is the second application setting out these grounds that I have seen in the last week.
The grounds are most comprehensive and set out virtually every ground for relief known to administrative law other than actual or apprehended bias. The grounds, some of which are rather radical, include a claim that the decision by the Refugee Review Tribunal is not a jurisdiction made under the Migration Act. The other grounds are as follows:
a)That the decision is affected by jurisdictional error;
b)That the decision of the Tribunal is affected by a constructive failure to exercise jurisdiction;
c)That the Tribunal made a mistake in determining the limits of its jurisdiction;
d)That the Tribunal misconceived the duty it was under when it was reasoning its satisfaction in regards to whether or not a protection visa was to be granted under s.65(1) of the Act;
e)That the Tribunal breached the judicial duty to make or apply a finding of law using formal logic;
f)That the Tribunal failed to act judicially;
g)That the Tribunal exercised judicial power in a manner reserved for the exercise of executive power;
h)That the Tribunal did not maintain a separation between its judicial and executive exercises of power;
i)That a breach in the judicial duty to use formal logic is a breach of the rule of law on the grounds of arbitrariness;
j)That the Tribunal did not uphold the rule of law;
k)That the Tribunal acted unconstitutionally.
The grounds are supported by two sets of particulars headed, "Particulars 1", and, "Particulars 2". Particulars 1 is divided into paragraphs (a) and (b). Particulars 2 is divided into paragraphs (a), (b) and (c).
I asked the applicant to explain to the Court the meaning of the grounds of his application. He was unable to do so except to say that the Tribunal had not considered his claim of persecution because of his political views. I note that this matter seems to have been addressed by the Tribunal in its decision and was clearly considered by Raphael FM in the earlier proceedings before the Federal Magistrates Court.
His Honour considered in the earlier proceedings that he was satisfied that the Tribunal had come to its conclusions based upon evidence that was available to it which had been clearly set out. He found that the Tribunal's reason and conclusions could be seen to have been arrived at from the consideration of the evidence before it. His Honour noted that there did not seem to him to be any matter other than one of fact that could give rise for concern about the decision. Accordingly, his Honour found that there were no grounds upon which the decision could be reviewed under s.39B of the Judiciary Act.
It appears to me that the ground explained by the applicant for me today is in fact the same ground based on the merits of the decision. That of course is not a ground for judicial review. The other grounds set out in the application seem largely to be irrelevant to the matters before the Court. I cannot identify any jurisdictional error. I cannot identify any constructive failure to exercise jurisdiction any more than I can identify any error in the Tribunal determining the limits of its jurisdiction. There appears to be no evidence from the Court Book that the Tribunal misconceived the duty it was under when deciding whether or not a protection visa should be granted. With respect, it appears to me that the decision of Raphael FM that the Tribunal arrived at its reasons and conclusions from a consideration of the evidence before it is an accurate description.
I should perhaps comment on two points. There is a claim that the Tribunal breached the judicial duty to make or apply a finding of law using formal logic. The applicant alleges that the Tribunal failed to act judicially. The applicant alleges that the Tribunal exercised judicial power in a matter reserved for the exercise of executive power and did not maintain a separation between its judicial and executive exercises of power. The applicant was not able to explain why an administrative Tribunal which is not a Court has a requirement to act judicially.
The applicant also alleges that the Tribunal failed to use formal logic. The applicant says "A breach in the judicial duty to use formal logic is a breach of the rule of law on the grounds of arbitrariness". As I was not able to understand what that meant I asked the applicant to explain it to me. He was not able to do so. There is no ground for the assertion that the Tribunal did not uphold the rule of law. There is no ground for the assertion that the Tribunal acted unconstitutionally. The applicant was unable to identify any breach of the Commonwealth Constitution and I find that an adverse decision by the Refugee Tribunal as to an applicant's credibility does not in itself have any suggestion of unconstitutionality about it. Particulars 1 of the applicant's application relates to what could be described as the "formal logic" argument.
The applicant says:
There was a strong logic in the finding at law by the Tribunal as to the availability of protection to the applicant from persecution for political opinion through the Courts of Bangladesh and subsequently the finding in law that the applicant did not have a well-founded fear of being persecuted. The fallacy arises from an invalid inference pattern that is described in terms of formal logic.
I do not know what that means and when I asked the applicant he was unable to tell me.
The applicant goes on to refer to the allegedly trumped up charge against him dating back to 1992 or thereabouts. I did point out to the applicant that this charge which he believed was one relating to an allegation of rape was one for which he would appear to have an alibi as he has been out of Bangladesh for many years with only occasional visits to the country. The argument about the allegedly fabricated charge against the applicant I will set out in full as it has been previously referred to in a matter before me within the last week:
The logic occurs when the Tribunal denies the antecedent such that it held; if the applicant was found or will be in future found guilty by the Courts then the applicant's committed the crimes charged of him; the applicant was found guilty by the Courts and in the future may or may not be found guilty by the upper Courts. Therefore the applicant is to be tried by the Courts in order to determine whether or not he committed the crimes charged against him. The Tribunal denied is the persecution (sic) of the applicant by the Courts for his political opinion as a member of political party.
That statement which is set out in particulars 1(b), if it means anything at all I interpret it as meaning the following. If the applicant has been found guilty or will be found guilty by a Court then he must have committed the crime with which he was charged. He may or may not be acquitted on appeal. He will be tried by a Court in order to determine whether or not he committed crimes with which he was charged. This would appear to me to be a statement of the obvious and if indeed the applicant has been found or will be found guilty of any crime then he cannot rely on that to show that he has a well-founded fear of persecution for a convention reason.
The final statement I interpret to mean that the Tribunal did not accept that the applicant faced persecution by means of a fabricated charge based on his political views. That is no more than a claim for a merits review. Particulars 2 set out in the application contains nothing more than a claim for a merits review. It is a challenge to the facts.
The fact is that the applicant has set out no new grounds in his application. The grounds referred to relying as they do on pronouncements relating to formal logic are little more than meaningless and gibberish. The fact is that this application is an abuse of process. There are no new grounds. The applicant has already applied for a review of the decision and has been unsuccessful after a hearing by the Federal Magistrates Court. He has appealed against this decision and has been unsuccessful after a hearing by the Federal Court. He has sought special leave to appeal to the High Court of Australia and the High Court has decided that he is not to be granted that leave. All that the applicant has done is filed another application in an attempt to start the whole circular process again. There is no merit to this application. It is, as I said, an abuse of process as it is nothing more than an attempt by the applicant to create further delay by misuse of the Court proceedings.
The application is dismissed. The application has also been commenced out of time in that the decision was handed down on 25 February 2003. This application was not commenced until 5 April 2005. The intervening time of course has been taken up by the applicant applying to every other Court that has jurisdiction as well as to this one. The application is not competent as it was not made within 28 days of the applicant having been made aware of the decision of the Refugee Review Tribunal.
If ever there was a case for indemnity costs this is it, and I refer to the principles set out Colgate Palmolive Pty Ltd v Cussons Ltd (1993)
46 FCR 225; 118 ALR 248. These are proceedings where the applicants had been properly advised, they would have never have commenced these proceedings. The applicants have brought these proceedings which are clearly without merit and are an abuse of the process of this court. I will order costs on an indemnity basis.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 15 June 2005
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