SZAKP v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1385

FEDERAL COURT OF AUSTRALIA

SZAKP v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1385

SZAKP and Ors v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1108 of 2004

WHITLAM J
29 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1108 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZAKP SZAKQ SZAKR SZAKS APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	29 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with 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	NSD 1108 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZAKP SZAKQ SZAKR SZAKS APPELLANTS
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	29 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court in which Driver FM dismissed the appellants’ application under s 39B of the Judiciary Act 1903 for relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’): SZAKP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 192. The decision in question was handed down by the Tribunal on 3 April 2003. It affirmed a decision of the respondent’s delegate refusing to grant protection visas to the appellants.

2. This appeal was fixed for hearing on 18 August 2004.  On that date directions were given, allowing the appellants to amend their notice of appeal by filing a supplementary notice by 22 September 2004 and requiring them to file and serve written submissions five working days prior to the hearing date.  The first-named appellant filed an amended notice of appeal on 23 September 2004.  No written submissions were filed on behalf of the appellants.

3. At the hearing of the appeal counsel for the appellants made no reference in address to the grounds set out in either the notice of appeal or the amended notice of appeal.  This is hardly surprising as those grounds were gibberish.  Nonetheless, in the absence of any outline of argument, I confess that I found it somewhat difficult to follow how precisely counsel for the appellants asserted that there was a jurisdictional error in the present case.  This difficulty was compounded by the fact that his oral submissions included not even a fleeting reference to the different kinds of error identified by McHugh, Gummow and Hayne JJ in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 351. Indeed, in his address, counsel for the appellants did not direct my attention specifically to any particular passage in the Tribunal’s reasons for decision or in the judgment under appeal. All in all, his was a startlingly novel approach to appellate advocacy. Counsel for the appellants focused his argument on two matters. However, before dealing with them, a little background is required.

4. The appellants are nationals of Bangladesh.  They are also Christians.  The first-named appellant claimed to fear persecution in that overwhelmingly Muslim country on account of his religion.  In particular, he claimed to have been physically attacked in that country because of his religion on a number of occasions.  The centrepiece of those claims was the first-named appellant’s involvement in the marriage of a nephew to a Muslim girl.  The Tribunal accepted that on one occasion only, in June 1997, he was physically assaulted because of such involvement, but it was not satisfied that the attack was religiously motivated.  The first-named appellant also told the Tribunal that he was last attacked when travelling on a public bus in December 1999, but the Tribunal found that this incident (in which he was robbed) had nothing to do with his religion and was a random criminal act. 

5. On the review by the Tribunal, the appellants’ migration agent submitted on 10 August 2000 a number of ‘new’ documents.  These included a letter from one Timothy A Faircross, Chairman of the Christian Business Men’s Committee – Bangladesh.  Following a hearing by the Tribunal on 27 August 2002, an officer of the Tribunal contacted Mr Faircross about this letter and asked him five questions.  Mr Faircross replied to the Tribunal by email dated 1 September 2002.  The Tribunal held a further hearing on 5 February 2003. 

6. The Tribunal referred to Mr Faircross’s original letter and his email in its statement prepared under s 430 of the Migration Act 1958.  In the section headed ‘Claims and Evidence’, the Tribunal said of those communications (at p 13):

   ‘… Mr Faircrosss stated that:

   …

   ·When the applicant’s nephew married a Muslim girl the couple were put into gaol for almost two years.  The applicant helped his relatives be released from gaol and transferred to India.  From that time the Muslim girl’s relations and fundamentalists from the girl’s area were after the applicant and threatened him and his family;

   ·         The applicant and his family had to hide;

   ·The applicant’s problems increased in 1999 after the applicant’s nephew and his wife left for India.’

   The Tribunal did not, however, refer to this evidence again in the section of its statement headed ‘Findings and Reasons’ where it dealt with the claims arising out of the nephew’s marriage to a Muslim girl. 

7. In the Federal Magistrates Court the appellants were unrepresented.  Driver FM was able, nonetheless, to discern several discrete issues raised by the appellants.  His Honour permitted the appellants to reopen their case and tender transcripts of the Tribunal hearings in relation to three of those issues, one of which was whether the Tribunal failed to take account of Mr Faircross’s email.  The appellants subsequently tendered a transcript of part only of the Tribunal hearing on 5 February 2003.  On the basis of that limited tender Driver FM was unwilling to find that the email was not discussed during the hearings.  His Honour observed that, even if the email was not discussed at the hearings, it would not follow that it was not considered by the Tribunal.  His Honour accepted that the proper inference to be drawn from the Tribunal’s statement of reasons was that it did consider Mr Faircross’s email.  Accordingly, the submission that the Tribunal did not take it into account was rejected. 

8. I turn now to the blunt submissions of counsel for the appellants.  First, he raised a point that was apparently not taken in the Federal Magistrates Court.  He submitted that the Tribunal failed to appreciate that the first-named appellant claimed that he was attacked on the bus in December 1999 because of his religion.  It is little wonder that this point was not taken by the adult appellants themselves at first instance.  It is ridiculous.  Having found (at p 28) that the incident was ‘a random criminal attack’, the Tribunal stated in the first sentence of the very next paragraph that:

   ‘Overall, I am not satisfied that the applicant has ever been attacked because of his religion.’

9. Secondly, counsel for the appellants submitted that Driver FM should have listened to the tapes of the Tribunal hearings.  It does appear from his Honour’s reasons for judgment (at [7]) that at the hearing below he did decline to listen to a part of one of the tapes of the hearing of 5 February 2003.  However, as I had said, the appellants were permitted to tender transcripts of so much of the hearings as they considered relevant.  (Curiously, counsel for the appellants did not support this submission with an application to receive the tapes as further evidence on the appeal.)  In any event, the legal consequences of Driver FM’s refusal to listen to the tapes were not spelt out by counsel.  If he meant to hint that the Federal Magistrate’s approach to proof of what transpired at the hearings involved some procedural unfairness to the appellants, I emphatically reject any such suggestion.  If the goal of listening to the tapes were to ascertain with more certainty and with one’s own ears whether the Faircross email was ever ‘discussed’ in the hearings, such an exercise would be pointless.  As Driver FM correctly pointed out, it did not matter whether such a discussion ever took place.  It is clear from the reference to it in the Tribunal’s reasons that Mr Faircross’s email was not ignored.

10. Neither of the points taken by counsel for the appellants has the slightest merit.  The appeal will be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             29 October 2004

Counsel for the appellants:	S M Hegedus
Counsel for the respondent:	G R Kennett
Solicitors for the respondent:	Clayton Utz
Date of hearing:	20 October 2004
Date of judgment:	29 October 2004