SZAJA v Minister for Immigration and Multicultural &

[2004] FCA 441

FEDERAL COURT OF AUSTRALIA

SZAJA v Minister for Immigration & Multicultural &
Indigenous Affairs [2004] FCA 441

SZAJA v MINISTER FOR IMMIGRATION & MULTICULTURAL &
INDIGENOUS AFFAIRS

N 346 of 2004

LINDGREN J
5 APRIL 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 346 OF 2004

BETWEEN:	SZAJA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	5 APRIL 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 346 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAJA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	LINDGREN J
DATE:	5 APRIL 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks an extension of time in which to file and serve a notice of appeal from a judgment of Federal Magistrate Driver given on 18 February 2004.  Upon being called outside the courtroom this morning, the applicant has not appeared.

2. On 18 March 2004 a Deputy District Registrar wrote to the applicant advising him that the application was listed for hearing before me at 10.15 am today and that, if the applicant had any queries about this listing, he should telephone the Deputy District Registrar (a telephone number was supplied).  In addition, Ms Watson, who appears for the respondent Minister (‘the Minister’), informs me that a copy of the Minister’s submissions was served on the applicant on 1 April 2004.

3. I also note that on 17 March 2004, a Deputy District Registrar wrote to the applicant in relation to the applicant’s affidavit filed in support of the application for extension of time.  That affidavit asserted that he had sought an adjournment of the hearing before Driver FM on the ground that his barrister, Mr Ignatius Asuzu, was ill and was not able to appear for the applicant before the Federal Magistrate.  Driver FM refused the application for an adjournment and noted that Mr Asuzu had not filed a notice of appearance and that there had been no contact by him or anyone on his behalf with the Court.  Driver FM observed that there was nothing in the material before him to indicate that in fact Mr Asuzu had accepted instructions to represent the applicant.

4. The letter dated 17 March 2004 from the Deputy District Registrar to which I referred suggested that the applicant might wish to consider obtaining evidence from Mr Asuzu that he had indeed accepted a brief to appear for the applicant in the Federal Magistrates Court and was prevented from doing so by illness.  The Deputy District Registrar’s letter concluded:

   ‘This evidence should be filed at the Registry as soon as possible.’

   No such evidence has been filed and there has been no contact with this Court by Mr Asuzu or anyone on his behalf.

5. Order 32 rule 2 of the Federal Court Rules empowers the Court to take any one of four courses, depending on the circumstances, where a proceeding is called on for trial and a party is absent.  One possibility is for the Court to proceed with the trial generally or so far as concerns any claim for relief in the proceeding.  Where the party absent is the applicant it is possible for the Court to dismiss the proceeding.  In the present case, written submissions have been filed and served on behalf of the Minister and I think it appropriate to proceed with the trial.

6. The applicant, a citizen of Bangladesh, arrived in Australia on 28 November 1997.  On 20 January 1998 he lodged an application for a protection visa.  That application was supported by a statement in which the applicant claimed: 

   ‘(a)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;

   (b)to have been detained between 12 June 1991 and 3 December 1991 after the election of the Bangladesh Nationalist Party (“the BNP”) in February of 1991;

   (c)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;

   (d)that the police station did not accept his complaint against the thugs; and

   (e)that false cases were mounted against him and that this was what had compelled him to leave the country.’

7. On 2 March 1998 a delegate of the Minister refused to grant a protection visa.  On 27 March 1998 the applicant filed an application for review of the delegate’s decision with the Refugee Review Tribunal (‘the RRT’).

8. On 31 May 2000 the RRT handed down its decision.  The RRT affirmed the delegate’s decision.

9. In many respects the RRT did not accept the applicant’s claims.  The following summary is taken from the Minister’s submissions and adequately summarises the relevant parts of the RRT’s reasons for decision. In sum, 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;

   (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;

   (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;

   (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;

   (e)found there were 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;

   (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, and because the applicant’s oral evidence was utterly unconvincing;

   (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;

   (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;

   (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;

   (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;

   (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;

   (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;

   (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.’

10. It is significant that the application to the Federal Magistrates Court for relief in respect of the RRT’s decision was commenced on 10 April 2003, that is, nearly three years after the handing down of the RRT’s decision.  The following grounds were set out in the application to the Federal Magistrates Court:

    ‘The decision is infected by the following errors which amount to a constructive failure to exercise jurisdiction.

    1.The Tribunal erred by failing to adopt a procedure that was required by s 430 of the Migration Act or regulations to be observed in connection with the making of the decision were not observed:

    (a)In particular, failing to realise the connection between the applicant’s father, as “a great freedom fighter”, would have a reputation that could affect his son being harmed or targeted for his political opinion, under the Convention reason.

    2.Failure to consider a Convention ground in that:

    (a)The Tribunal failed to consider whether the applicant had a well founded fear of persecution by reason of being a member of a particular social group, namely “political activist” in Bangladesh.

    (b)The Tribunal failed to consider whether the Bangladesh police were unable or unwilling to protect political activists from being targeted by opposing political parties.  In particular, Bangladesh Nationalist Party (BNP) and the Awami League.

    (c)The Tribunal found as a fact that “I accept that the applicant as a young student was injured in the riots that accompanied the downfall of the Ershad regime in December 1991”, when there was no evidence before the Tribunal that the applicant’s injury was not for his political activism.’

11. Driver FM gave an ex tempore judgment.  In addition to refusing the application for the adjournment, he found that the original application for a protection visa had been valid and that no jurisdictional error was shown.  But his Honour added that even if a jurisdictional error had been made out, he would have declined relief in the exercise of discretion because the applicant had delayed for such a long period of time.

12. In the present application for an extension of time, the applicant proposes a draft notice of appeal, which, in substance, seeks to re-agitate the two grounds which were before the Federal Magistrate, and adds three grounds, all of which are based on the refusal of the adjournment and the Federal Magistrate’s insistence that the hearing proceed even though the applicant was unrepresented. 

13. The present application for an extension of time was filed on 15 March 2004 on which date the applicant also filed a draft notice of appeal and an affidavit in support of the application for an extension of time.  Since the Federal Magistrate’s judgment was given on 18 February 2004, the 21 day period for the filing of a notice of appeal expired on 10 March 2004 (see O 52 r 15(1)(a)(i) of the Federal Court Rules).  Accordingly, the applicant was five days late.  Order 52 r 15(2) provides that the Court may ‘for special reasons’ at any time give leave to file and serve a notice of appeal.

14. Although the delay in the present case is a delay of only five days, there is no attempt by the applicant in his supporting affidavit to explain that delay.  Nor is there any explanation of the gross delay between the date of the RRT’s decision and the commencement of the proceeding in the Federal Magistrates Court.  Further, there has been no communication, as mentioned earlier, from Mr Asuzu and no affidavit from him.  It is true that the applicant filed in this proceeding an affidavit by himself to which were attached certain documents purporting to be issued by the Registrar of the Emergency Department of Liverpool Hospital and the Liverpool Health Service relating to Ignatius Asuzu.  These documents suggest that Mr Asuzu was admitted to hospital on 25 January 2004 and discharged on 27 January 2004, that he presented to the Emergency Department on 10 February 2004 and perhaps again to the Infectious Diseases Microbiology Department on the ground floor of the Liverpool Hospital on 12 February 2004.  However, the hearing date before Driver FM was 18 February 2004.  Of course it is possible that Mr Asuzu was still affected on 18 February 2004 by whatever had affected him earlier but there is simply no evidence of this and I would not be prepared to infer that he was.

15. No explanation for the delay is established.

16. The particular of the first proposed ground of appeal as originally set out in the application to the Federal Magistrate’s Court, is not a particular of a failure to follow a required procedure amounting to a jurisdictional error.

17. There was no suggestion whatever in the material before the RRT that there is a particular social group, ‘political activists’, in Bangladesh.  Accordingly, proposed ground of appeal 2(a) is not arguable.

18. Nor is proposed ground of appeal 2(b).  The RRT did not accept that the applicant had been targeted at all.  Therefore, the question of police protection did not arise.

19. Proposed ground of appeal 2(c) involves a non sequitur.  The suffering of an injury in a riot does not necessarily indicate that the sufferer was being targeted.

20. The three new grounds of appeal are not arguable either. It was a supportable exercise of the Federal Magistrate’s discretion not to grant the adjournment sought, and he gave reasons for refusing to grant it. He referred, for example, to the fact that there was no contact from Mr Asuzu or from anyone on his behalf; that there was no evidence that Mr Asuzu had accepted instructions from the applicant; that the applicant had waited for nearly three years following the RRT’s decision before seeking judicial review; that in the meanwhile the applicant and his migration adviser had sought the intervention of the Minister under ss 417 and 48B of the Act; but that there was a further unexplained delay since that time.

21. For all the above reasons, the application for an extension of time is dismissed with costs.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:
Dated:             16 April 2004

The Applicant did not appear.
Solicitor for the Respondent:	Ms D Watson, Australian Government Solicitor
Date of Hearing:	5 April 2004
Date of Judgment:	5 April 2004