SZAJV v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1447

FEDERAL COURT OF AUSTRALIA

SZAJV v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1447

SZAJV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD761 of 2004

MADGWICK J
20 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD761 of 2004

BETWEEN:	SZAJV APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	20 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave to appeal be refused.

2.The proceedings be dismissed.

3.The applicant pay the respondent’s costs, fixed in the sum of $3,000.

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	NSD761 of 2004

BETWEEN:	SZAJV APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	20 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. This is an informal application for leave to appeal from a decision of Federal Magistrate Driver within the Federal Magistrates Court on 23 April 2004. His Honour was dealing with a very late application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) adverse to the applicant. His Honour found that the decision of the Tribunal was not attended by any jurisdictional error; accordingly the decision was a privitive clause decision and the application must be dismissed. Moreover (and antecedently, one would think) the Federal Magistrate allowed the respondent’s objection to the competency of the application as it was late and the absence of jurisdictional error meant that s 477 of the Migration Act 1958 (Cth) (‘the Act’) controlled the situation. However, his Honour would not have declined relief in the nature of constitutional writs for jurisdictional error, had there been any, on account of the lateness.

2. The respondent takes the point that, if the interlocutory judgment that the appeal was incompetent is not successfully appealed from, then the other matters dealt with by the learned Magistrate do not arise and says, correctly in my view, that the judgment that the application to the Federal Magistrates Court was incompetent was an interlocutory one, so that leave to appeal is required.  This was evidently not appreciated originally by the applicant’s legal advisers, and a notice of appeal, followed by an amended notice of appeal, followed by an intended further amended notice of appeal, have been filed in the Court, but no application for leave to appeal.  Accordingly, it is convenient to deal with the proceedings as an out of time informal application for leave to appeal.

3. The applicant was represented before the learned Federal Magistrate by experienced counsel.  Before his Honour the applicant pressed three grounds which, summarised, were that the Tribunal failed to rely upon relevant considerations in coming to its conclusion adverse to the applicant; the Tribunal failed to have regard to all of the claims made by the applicant; and the Tribunal applied a wrong test for the future, in that it failed to determine whether the applicant had a well founded fear of violence related to his political activities, because there was a real chance of such violence occurring should he be returned to Bangladesh.  The learned Magistrate necessarily negatived in his judgment the validity of those asserted grounds of judicial review. 

4. Here, the applicant by different counsel wishes to put a different point entirely.  The grounds for the intended appeal, set out in the intended further amended notice of appeal, are in substance that the Tribunal made a critical finding that the applicant had no well founded fear of persecution because he would be able to return to Bangladesh and participate in political activities at the same level as he did prior to coming to Australia without in fact being at risk persecution, and it is said that this finding had no probative basis, was illogical, and was so unreasonable that no reasonable Tribunal member could have made it.  It is further said that the Tribunal member denied the applicant procedural fairness by failing to put to the applicant the independent evidence from which the Tribunal derived its intermediate conclusion that it is possible to be involved in activities in Bangladesh without being a perpetrator or a victim of violence.

5. It is also said, as to that intermediate finding, that there was no probative basis for it, it was illogical and was so unreasonable that no reasonable Tribunal would have made it.  In favour of the application for leave to appeal it is said, correctly, that questions of law only are involved and that it is not asserted by the respondent that she has been prejudiced by denial of an opportunity to call for evidence. 

6. The respondent, however, submits that leave should not be granted because the applicant merely wishes now to agitate a fresh point that did not occur to competent counsel, and does not wish to challenge the disposition of the case by the learned Federal Magistrate on the basis that it was put to him.  It is further submitted that it is destructive of the orderly administration of justice in the Court if the normal processes of a first instance hearing, intended to be final except for demonstrated error, and an appeal confined to the correctness of the decision at first instance, are departed from without either exceptional, or some very good reason, and no such good reason has been demonstrated here.  Alternatively, or additionally, it is said that there is no reasonable prospect of success in relation to the new point, so that it would be futile to grant leave.

7. In my view, the submissions of the respondent in this matter should be upheld. 

8. It emerged before the Tribunal that, as the Tribunal member found, although the applicant had been active in a relatively minor way and had achieved a relatively minor degree of prominence in student politics, favouring the Bangladesh National Party (‘BNP’), in his native Bangladesh, and had been present during various conflicts, the only harm that had come to him personally was that he was detained and physically mistreated by police or security authorities when the university hall of residence in which he then resided was searched by the authorities for illegal weapons.  The Tribunal found, however, that the applicant was not of any ongoing interest to the police as a result of that or any other incident and that the rival Awami League or its agents had not harmed him, despite some threat to him on one occasion, at any time.  In the course of his evidence before the Tribunal, the applicant explained to the Tribunal member that it was a practical necessity for him to be re-involved in politics if he returned to Bangladesh for economic reasons.  Apparently, he considered that the road to economic success or survival necessitated such involvement.

9. In this context, the Tribunal member concluded:

   ‘Overall, whilst I accept that the applicant was involved in political activities - some of which involved violence - prior to his departure from Bangladesh, I am not satisfied that the applicant was prevented from expressing his political opinion, or that he was of any ongoing interest to the Bangladeshi authorities or to opposing political groups because of his political opinion or activities.

   I accept that if he returns to Bangladesh, the applicant might choose to again be involved in political activities in support of the BNP, either with the BNP itself or one of its affiliated organisations, such as the JCD. However, during the hearing the applicant indicated that he does not support violent political activities and does not want to be involved in such activities. The independent evidence before me is that the BNP is a legal political party in Bangladesh. It has recently won a landslide victory in parliamentary elections. There is nothing in the independent evidence before me to suggest that the BNP will not remain the governing party in Bangladesh until the next general election. There is also nothing in the independent evidence before me to indicate that a supporter of the BNP is unable to be openly involved in political activities in Bangladesh.

   I note the applicant's evidence that he is personally committed to peaceful political activities. The independent evidence before me indicates that it is possible to be involved in political activities in Bangladesh without being a perpetrator or a victim of violence. In my view, the applicant would be able to return to Bangladesh and participate in political activities to the same level as he did prior to coming to Australia without being at risk of persecution. I accept that the applicant would not be able to get back his previous political position. However, I am not satisfied that this would amount to persecution for a Convention reason.’

10. As to what was put to the applicant by the Tribunal, it appears to me that the Tribunal member went out of her way to put her concerns fairly to the applicant.  She referred to a number of items of information which she felt did not support his case.  They were:

    (1)that the BNP and other political parties were legal political parties in Bangladesh and stand candidates in elections, operating quite openly and legally;

    (2)Although there was much violence in Bangladesh politics over the last 30 years, nevertheless political parties in Bangladesh had thrived and had a big impact on the political life of the country. 

    (3)There was no sign of political repression in Bangladesh on a scale that would make it difficult for members of the BNP or its student wing to be able to continue to live in Bangladesh and to take an active role in politics. 

    (4)Despite the prevalence of politics in Bangladesh, ‘not everybody who is involved in politics is involved in violent political activities and ... it is quite possible to be involved in politics in Bangladesh without being involved in violence.  That violence between student political groups has little to do with ideological differences and more to do with criminal attempts to get control of the dormitories’.

11. The Tribunal member then said:

    ‘Taking all this information together, it seems to me that it would be very difficult for me to say that if you return to Bangladesh you would face persecution because you are a Chatra Dal member and a BNP supporter.  The independent evidence suggests that you would be able to still be involved in politics in Bangladesh if you chose to do so without either perpetrating violence or being a victim of violence.  What would you like to say about that?’

12. The applicant gave an answer that did not necessarily compel, one may think, the abandonment of the prima facie view evidently held by the Tribunal member.

13. The Tribunal member continued to try to elaborate the matter.  She said:

    ‘Question:   I understand there are many problems in Bangladesh including political problems, but the information that I put to you indicates to me that you would not have any particular problem going back to Bangladesh and continuing to be a BNP supporter.  Do you agree or do you disagree with that?

    Answer:  Disagree.

    Question:  Tell me as briefly as you can, and as precisely as you can, why you disagree?

    Answer:   It is going to be difficult to let you understand what’s the reality and what sort of lifestyle is going [on] in Bangladesh.  If you can see the hidden sea land laying on the ocean, you can’t actually see it from outside but when you put yourself in there, it is a trap and then once you’re stuck then you realise what sort of consequences you are suffering from.’

14. As counsel for the respondent said, this has overtones of poetry but not much in the way of persuasive value.  In my opinion, there is no substance whatsoever in the proposition that any relevant finding was made in breach of the requirements of procedural fairness.

15. There was material before the Tribunal member from which she could draw the inferences as to the matters that concerned her, that she did fairly put to the applicant, and it seems to me that it cannot be said that there was no probative basis at all for her finding nor that it was so illogical that it must be said that she did not perform her review function so that there was a constructive failure of jurisdiction in that regard.  Nor does it strike me that her finding was so unreasonable that no reasonable Tribunal member could have made it.

16. It follows that in my opinion there is no reasonable prospect of success with the projected appeal.   For that reason and the additional reasons adumbrated by counsel for the respondent, to which I have referred, it seems to me that leave to appeal should be refused and I do refuse leave to appeal.

17. Accordingly, these proceedings will be dismissed with costs.

18. The applicant is to pay the respondent’s costs, which I assess in the sum of $3,000.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             8 November 2004

Counsel for the Applicant:	Mr I Archibald
Solicitor for the Applicant:	Ms Michaela Byers
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 October 2004
Date of Judgment:	20 October 2004