SZAJA v Minister for Immigration
[2004] FMCA 73
•18 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAJA v MINISTER FOR IMMIGRATION | [2004] FMCA 73 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Bangladesh – no reviewable error disclosed – whether, in any event, relief should be refused by reason of delay considered – relief in the form of constitutional writs should be refused in the exercise of discretion where the applicant sits upon his rights for a lengthy period without adequate explanation. |
Migration Act 1958 (Cth), ss.48A, 48B, 417, 430
Hodgens v Gunn; ex parte Hodgens (1990) 1 QLDR 1
Minister for Immigration v Li [2000] FCA 1456
R v Aston University Senate; ex parte Roffey and Another [1969] 2 QB 538
R v Commonwealth Court of Conciliation and arbitration; ex parte Ozone Theatres Australia Limited (1949) 78 CLR 389
Re McBain; ex parte Australian Catholic Bishops Conference [2002] HCA 16
Re Minister for Immigration; ex pate Durairajasingham (2000) 74 ALJR 405
Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57
SZANA v Minister for Immigration [2003] FCA 1407
SZANA v Minister for Immigration [2003] FMCA 350
Yilmaz v Minister for Immigration [2000] FCA 906
| Applicant: | SZAJA |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ537 of 2003 |
| Delivered on: | 18 February 2004 |
| Delivered at: | Sydney |
| Hearing date: | 18 February 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr R Bromwich |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ537 of 2003
| SZAJA |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 16 May 2000 and handed down on 31 May 2000. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant had made claims of political persecution in Bangladesh. The delegate rejected those claims on the basis that the applicant was a national of India. The RRT accepted that the applicant was a national of Bangladesh but, nevertheless, rejected his claims.
The relevant background facts are set out in paragraphs 1-5 of written submissions prepared on behalf of the Minister by Mr Bromwich. Save for one point of clarification required in relation to paragraph 2,
I accept and adopt that statement of background facts for the purposes of this judgment:
On 28 November 1997, the applicant, a citizen of Bangladesh, arrived in Australia, travelling on an Indian passport. On 20 January 1998 he lodged an application for a protection (class AZ) visa (RD 3). That application was supported by a statement in which he claimed:-
b)to have been one of the founders of and the elected general secretary of the student wing of the Jatiyo Party, known as Jatiyo Chatra Samaj (court book, pages 35, 36-37 [9]-[11]);
c)to have been detained between 12 June 1991 and 3 December 1991 after the election of the Bangladesh Nationalist Party (BNP) in February of 1991 (court book, page 37 [17])
d)that after the election of the Awami League in 1996, Awami thugs set his house on fire and stole his belongings, with his brother being seriously wounded;
e)that the police station did not accept his complaint against the thugs; and
f)that false cases were mounted against him and that this was what had compelled him to leave the country. (court book, page 38 [21]-[24])
On 2 March 1998, a delegate of the respondent refused the grant of a protection visa (court book, page 46). On 27 March 1998, the applicant filed an application for review with the RRT (court book, page 54). On 22 March 2000, the applicant’s migration agent enclosed the original statement from the applicant (in a different format), it having apparently not come to the attention of the delegate (court book, page 64).
On 31 May 2000, the RRT handed down a decision made on 16 May 2000 affirming the decision of the delegate not to grant a protection visa (court book, page 79). In reaching that decision, the RRT:
a)was satisfied that the applicant was not a citizen of India and accepted that he was a Bangladeshi citizen, despite his failure to produce his Bangladeshi passport (court book, page 87.6);
b)found many aspects of the applicant’s account to be inconsistent and contradictory – for example in relation to his employment history and his record of studies (court book, page 87.9);
c)accepted that another person assisted the applicant in completing the application form and accepted that some minor errors and discrepancies can arise but found that some of the discrepancies such as those relating to employment and tertiary education were too specific and detailed to amount to mere errors of transcription (court book, page 88.2);
d)did not accept that the applicant worked as a chef only from 1990 until 1992 (from ages 14-16), but rather found that at least until 2 June 1997 the applicant had continued to reside in Bangladesh and continued employment as a chef in Dhaka and did not accept that the applicant left Bangladesh as early as February 1997 (court book, page 88.4);
e)found there was serious inconsistencies with the applicant’s evidence as to having had false cases filed against him, including forgetting that he had been charged with murder in 1996 (court book, page 88.5);
f)did not accept the applicant’s account of having been charged with highway robbery and murder as a 15 year old student in 1991 because his statements did not refer to the charges, with the implication being that the reason given for the detention was that the applicant was a well-known leader of the Chatra Samaj (court book, page 88.7), and because the applicant’s oral evidence was utterly unconvincing (court book, page 89.1);
g)accepted that the applicant’s father was a freedom fighter during the liberation war in Bangladesh in 1971, but found that the applicant had greatly exaggerated his father’s fame and standing (court book, page 89.5);
h)did not accept that the applicant was elected to the position of general secretary of the Chatra Samaj within months of his entry of his first year of college (court book, page 89.6);
i)did not accept that he was elected to the position of publications secretary or general secretary of the Chatra Samaj and the Jatiyo Party in 1993 and 1996 (court book, page 89.7);
j)did not accept the applicant’s account that he and his family were attacked by Awami League workers following the 1996 elections, the applicant being unable to give any satisfactory reason why members of the Awami League would attack members of an allied party following an election in which the Awami League had to court the leadership of that party (court book, page 89.8);
k)accepted that the applicant as a young student was injured in the riots that accompanied the downfall of the Ershad regime in December 1991, but did not accept that this violence was specifically directed at the applicant for any political reason (court book, pages 89.9-90.1);
l)did not accept that the applicant was detained for six months in 1991, or that he had false cases instituted against him in 1991 or in 1996, or that he was a well known political activist in either the Jatiyo Party or in Bangladesh, but rather was a chef at a Dhaka hotel (court book, page 90.2);
m)did not accept that the applicant’s reasons for leaving Bangladesh were to do with his political activity or false cases filed against him, with none of his claims being credible (court book, page 90.3).
It is apparent that the reason why the applicant’s claim for a protection visa failed was that all of his factual claims in support of his application were comprehensively disbelieved. That fact-finding and exercise was an essential function of the RRT and not only within, but also a necessary part of, the exercise of its jurisdiction. Assessment of credibility is a function of the RRT “par excellence”.[1]
The applicant did not commence the present proceedings until 10 April 2003, nearly two years after the RRT’s decision was handed down.
[1] Re Minister for Immigration; ex parte Durairajasingham (2000) 74 ALJR 405 at 417 [67].
The clarification relates to Mr Bromwich's statement that on 22 March 2000 the applicant's migration agent enclosed the original statement from the applicant in a different format, it having apparently not come to the attention of the delegate.
I explored that issue with Mr Bromwich during oral submissions. It is apparent from the court book that at least three documents were prepared on behalf of the applicant setting out his claims of persecution. The first of those appears in the court book at pages 35 to 39. The document was signed by the applicant and dated 9 January 1998. That was the same date as appears on his original protection visa application. The document bears handwritten folio numbers which appear to come from the departmental file.
The decision of the delegate from pages 48 to 52 of the court book does not discuss the content of the claims made by the applicant. However, it appears from paragraph 2.2 at point 1 on page 50 of the court book that the relevant document was before the delegate. It also appears from paragraph 5.1 of the decision record at page 51 of the court book that the delegate did not consider it necessary to discuss the content of the applicant's claims because the delegate decided that the applicant was a citizen of India.
Following the RRT decision, the applicant's migration agent asserted that the protection visa application made by the applicant had been incomplete and invalid. However, the Department appears to have decided that the original protection visa application was valid and rejected a subsequent protection visa application in reliance upon s.48A of the Migration Act 1958 (Cth) (“the Migration Act”). Two requests to the Minister under ss.417 and 48B of the Migration Act were also rejected.
The applicant proceeds on the basis of his application filed on 10 April 2003 and a supporting affidavit filed the same day. I accepted the first three paragraphs of the affidavit as evidence and the balance as written submissions.
I agree with and adopt for the purposes of this judgment Mr Bromwich's written submissions in paragraphs 6 through to 10 of his written submissions for the purposes of this judgment:
Ground 1 – failure to adopt a procedure required by s.430, Migration Act and Regulations
There does not appear to be any basis for this ground of review. The RRT has provided a statement of his reasons as required by s.430 and there does not appear to have been any failure to meet the requirements created by that or any other provision.
Ground 2 – Failing to realise that his father’s reputation would affect the applicant
The RRT found that the applicant had greatly exaggerated his father’s fame and prominence. It made express findings of disbelief as to the applicant’s experiences and as to the reasons he gave for leaving Bangladesh. Moreover, his claim to have been elected to senior party positions was not accepted because it was predicated upon claims made about his father (court book, page 89.6). By expressly dealing with the claims in relation to the applicant’s father and each of the claims made by the applicant, the influence of the applicant’s father’s past was considered and clearly given little weight. Any consequential risk was necessarily taken into account, or alternatively was subsumed in the overall adverse findings as to credit. This is nothing more than an attempt at merits review.
Ground 2(a) – Failure to consider whether the applicant had a well founded fear of persecution by being a member of a particular social group, namely “political activist” in Bangladesh
The RRT expressly found that he did not accept that the applicant was a well-known political activist in either the Jatiyo Party or in Bangladesh generally (court book, page 90.2). The RRT found that the applicant’s claim to refugee status was based upon fear of persecution for his political opinion and was not satisfied he had well-founded fear of persecution on this or any other Convention grounds. The RRT accordingly did not fail to consider the substance of any part of the applicant’s claim.
Ground 2(b) – failure to consider whether the Bangladeshi police were unable or unwilling to protect political activist from being targeted by opposing political parties
The RRT did not need to consider the question of effective protection because it found against the applicant on his claim to have a well‑founded fear of persecution. Accordingly the issue of effective protection did not arise.
Ground 2(c) – no evidence that the applicant’s injury was not for his political activism
This ground misunderstands the role of the RRT. While the applicant did not have any onus to discharge as such, what is required is that the RRT be satisfied as to the facts and circumstances upon which an applicant relies for his claim for a protection visa. The RRT did not accept that the violence resulting in the applicant’s injuries was directed at him for any political reason (court book, pages 89.9-90.1). It was not the case that the RRT had to accept the applicant’s case or had to find positive evidence that an injury was not due to political activism. It was sufficient that it was not satisfied that this was the reason for it having taken place. Additionally, this is an attempt to engage this Court in impermissible merits review.
That disposes of the grounds set out in the application.
Paragraph 9 of the affidavit asserts that the presiding member “completely misapplied the law to the facts of my case”. However, no error additional to those set out in the application has been identified by the applicant and nothing additional is apparent to me. I find that the RRT did not misapply the law to the facts in this case.
Paragraph 10 of the affidavit asserts bias. However, there is no evidence of bias, either actual or imputed. I reject that ground.
When I invited the applicant to present his oral submissions he told me that he was in a disadvantaged position because he had instructed a lawyer, Mr Ignatius Asuzu, to act for him but the lawyer was not present. I told the applicant that Mr Asuzu had not filed a notice of appearance and there had been no contact from him or anyone on his behalf to the Court. In the circumstances, I declined to adjourn the hearing and told the applicant that if he was concerned by the absence of Mr Asuzu he should take that up with him. There is nothing in the material before me to indicate that in fact Mr Asuzu has accepted instructions to act for the applicant.
The other issue which appeared initially to arise in this case is whether the original application for a protection visa filed by the applicant was complete prior to his application to review to the RRT. That was an issue which I dealt with in the case of SZANA v Minister for Immigration [2003] FMCA 350, in particular at paragraphs 17 and 18. I note that the decision was affirmed on appeal by the Federal Court in SZANA v Minister for Immigration [2003] FCA 1407. My reasons in that case were based upon the decisions of the Federal Court in Yilmaz v Minister for Immigration [2000] FCA 906 and Minister for Immigration v Li [2000] FCA 1456.
The importance of those decisions is that the RRT would not have had jurisdiction to review the protection visa application decision if the application had not been completed to the Department. It appears on the analysis of the court book, however, on the balance of probability that the applicant's claims of persecution, made at the same time as his application form, were before the Department at the time the delegate made his decision.
If I am wrong in that conclusion, I would nevertheless have declined to provide relief in the exercise of my discretion. The provision of relief in the form of constitutional writs is discretionary. The discretionary nature of the jurisdiction of this Court and, indeed, the Federal Court to issue a constitutional writ is comparable to the jurisdiction of a superior court to grant or refuse prerogative relief. It is well established that the mere establishment of a ground of review does not entitle an applicant of necessity to a remedy. There is a useful discussion on the issue in Professor Flick's Administrative Law Service published by the Law Book Company at page 1584/11.
For certiorari to issue it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. In addition, prerogative relief may be refused where, for example, the applicant's claim is of a trivial nature or where the applicant has unreasonably delayed in approaching the Court for relief or where the applicant knew of the irregularity during the course of an administrative proceeding and thus, in effect, waived his or her right to object to an irregularity, or where the applicant's conduct is unmeritorious.
The discretionary nature of the prerogative writ of mandamus was referred to by the High Court of Australia in R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres Australia Limited (1949) 78 CLR 389 at 400.
In R v Aston University Senate; ex parte Roffey and Another [1969]
2 QB 538 the English High Court was dealing with the issue of delay in relation to prerogative writs. The Court held that there had been a breach of procedural fairness but declined to provide relief. The Court held that in as much as prerogative orders were discretionary remedies and should not be available to those who slept upon their rights, the applicants by their inaction between December 1967 and July 1968 had forfeited any claim to relief.
In the case of Hodgens v Gunn; ex parte Hodgens (1990) 1 QLDR 1 the Queensland Supreme Court, constituted by a Full Court, also refused prerogative relief for the reason of the failure of the applicant diligently or candidly to pursue his remedy in the Court. That was also a case of the review of procedural unfairness.
I note that the High Court has also considered the discretionary nature of constitutional writs in Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57. That decision confirms that the constitutional writs of prohibition and mandamus are discretionary and that the discretion may be exercised against an applicant in cases of delay. In that case, the High Court found that a delay of several months did not disentitle the applicant to relief. I also note that in Re McBain; ex parte Australian Catholic Bishops Conference [2002] HCA 16 the High Court confirmed the discretionary nature of relief in the form of certiorari.
We are here dealing with an applicant who waited nearly three years following the decision of the RRT to commence judicial review proceedings. Between the time RRT made its decision and October 2001, the applicant and his migration adviser were occupied in requesting the intervention of the Minister under ss.417 and 48B of the Migration Act. However, the applicant could give me no explanation for his delay since that time. He was informed by the RRT of his right to apply to the Federal Court to review the decision of the RRT. He did not do so. Having sat upon his rights unreasonably for a period of approximately eighteen months the Court should not now exercise its discretion to grant the relief he seeks even if jurisdictional error could have been made out.
I will dismiss the application.
On the question of costs, Mr Bromwich seeks an order for costs. The applicant tells me that he does not have the money to pay a costs order. I note that he has held a bridging visa without work rights. However, impecuniosity is not a reason for the Court to refrain from making a costs order. I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $3,000.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 25 February 2004
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