SZAPT v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1187

FEDERAL COURT OF AUSTRALIA

SZAPT v Minister For Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1187

SZAPT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N849 of 2004

MADGWICK J
SYDNEY
30 AUGUST 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N849 of 2004

BETWEEN:	SZAPT APPLELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	30 AUGUST 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs, fixed in the sum of $3,500.

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	N849 of 2004

BETWEEN:	SZAPT APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	30 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. This is an appeal from a decision of Raphael FM given on 6 May 2004.  His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 14 April 2003.  The Tribunal affirmed a decision of a delegate of the respondent to refuse to grant the appellant a protection visa.  As counsel for the respondent, Mr Smith, pointed out in his customarily helpful submissions, on the amended notice of appeal only three issues would arise.  First, were the circumstances of the case materially the same as those considered in Muin v Refugee Review Tribunal (2002) 76 ALJR 966 (‘Muin’s Case’). Secondly, whether the Tribunal erred in failing to disclose adverse information to the appellant; and thirdly whether the appellant ought to be allowed to raise those grounds on appeal.

2. Having regard to what was said by the unrepresented appellant when invited to make submissions in support of his appeal, a fourth issue of possible error by the learned Federal Magistrate arises, namely whether his Honour erred in refusing to adjourn the proceedings to enable the appellant to obtain legal advice.  A number of other grounds appear in the amended notice of appeal, but the other grounds, as Mr Smith points out, do not raise any questions of law.

3. The appellant is a Bangladeshi national.  He arrived in Australia on 1 September 2001 and promptly applied for a protection visa.  He claimed to fear persecution for reasons of his political opinion, namely his active role in, and support of, the Bangladeshi National Party (‘BNP’).  He also claimed to fear harm from ‘fundamentalist Muslims’ because he supported a well known Bangladeshi feminist, Taslima Nasreen.

4. The Tribunal held a hearing on 14 April 2003 and, after the appellant had given evidence and produced further documents, the Tribunal member orally decided the review application against the appellant.  Later, the Tribunal member published the reasons for his decision which run to 26 pages. 

5. The Tribunal member disbelieved most of the appellant’s claims.  In particular, the Tribunal member concluded that the appellant did not fear persecution in Bangladesh at all.  He also seems to have found that, if there were any fears held by the appellant, they could relate only to claimed events which had occurred in two cities and there were many other places in Bangladesh to which the appellant could quite reasonably relocate, so that there was not any well founded fear of a failure of state protection.

6. In the court below, the appellant attacked the Tribunal’s decision as being affected by actual bias.  The learned Federal Magistrate found that the appellant had not made out actual bias, nor had he made out a case of apprehended bias.  His Honour correctly observed that, as the reasons for the Tribunal’s decision related to the appellant’s credibility, there was nothing to enable him to remit the matter for further consideration by the Tribunal.  As the Minister through her counsel points out, the appellant seeks now to raise grounds which were not raised in the court below. 

7. The appellant, it appears, did not establish the necessary factual basis for a ground of jurisdictional error by the Tribunal founded on Muin’s Case to succeed.  There was nothing before the learned Federal Magistrate to indicate that the appellant was misled by the Tribunal in refraining from putting before the Tribunal further material in support of his case.  Thus, the Muin ground of appeal cannot succeed. 

8. Secondly, as to the supposed failure by the Tribunal to disclose country information, the age of the case is such that the doctrine of common law natural justice applies.  The Minister submits that, as his Honour did not hear the sound recording of the hearing before the Tribunal, and the appellant did not tender a transcript of it, there is no evidence that the Tribunal failed to put to the appellant any information which was credible, relevant and significant to the decision, see Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at para 140. I agree.

9. Thirdly, his Honour appears to have been satisfied that the appellant had ample time to obtain legal advice and that a particular claim by the appellant that he had not received any advice or even any contact from the barrister assigned to advise him, under the pilot scheme to provide such advice operating in the New South Wales Registry, was not made out.  Accordingly, he declined the appellant’s application for an adjournment to enable him to obtain legal advice.  There is nothing in the material before me to indicate that the learned Federal Magistrate erred either in his factual approach to the matter or in his understanding of the relevant rules and principles.  Accordingly, that ground for criticism of the decision of the Federal Magistrate’s Court must also fail. 

10. In these circumstances, there is no basis for this appeal to succeed.  As to the Muin issue and the supposed failure to disclose country information, both of those issues could have been met by evidence if they had been raised in the court below.  In those circumstances, leave ought not be granted now to allow the appellant to raise these grounds on appeal, see Coulton v Holcombe (1986) 162 CLR 1 at 78.

11. Further, in the absence of evidence, the grounds appear to have insufficient prospects of success to warrant the grant of such leave.  In the circumstances the appeal must be dismissed.

12. The appellant is to pay the respondent’s costs, which I assess in the sum of $3,500.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             15 September 2004

The Appellant appeared in person.
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	30 August 2004
Date of Judgment:	30 August 2004