SZAVH v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1491

FEDERAL COURT OF AUSTRALIA

SZAVH v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1491

SZAVH, SZAVI, SZAVJ AND SZAVK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1454 of 2004

BRANSON J
15 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1454 of 2004

BETWEEN:	SZAVH, SZAVI, SZAVJ AND SZAVK APPELLANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	15 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1454 of 2004

BETWEEN:	SZAVH, SZAVI, SZAVJ AND SZAVK APPELLANTS
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	15 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court. The appellants are four members of one family. They claim to be entitled to protection visas. Only one family member claims to be a person to whom Australia owes protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together ‘the Refugees Convention’). He is hereafter referred to as the appellant. The claims of the other family members are dependent on the success of his claim (see s 36 of the Migration Act 1958 (Cth) (‘the Act’)).

2. The notice of appeal to this Court raises the following three grounds of appeal:

   ‘1.That the Federal Magistrate failed to find that the tribunal’s decision was in breach of procedural fairness as required under section 418(3), Section 424A (1) of the Migration Act 1958.

   2.That the Federal Magistrate failed to find that the tribunal denied the applicant natural justice in that it had material adverse to the applicant which it did not give the applicant access to prior to the hearing and also failed to understand the Article 1A (2) of the convention defines a refugee and criterion set out in s.36 (2)(a) of the Act for a protection visa.

   3.The ground set out in 1 and 2 above constitutes a failure by the tribunal to give genuine and realistic consideration to the applicant’s application and act in a bona fide manner.’

3. Before the Federal Magistrates Court there was an original application which had been drawn, as it would seem, by the appellant personally.  It disclosed no proper grounds of review of the decision of the Refugee Review Tribunal (‘the Tribunal’).  Subsequently an amended application was filed, apparently by the appellant, but it seems likely that it was drawn with legal assistance.  The following three grounds of review were contained in that amended application:

   ‘1.That the Tribunal denied the Applicant natural justice in that it had material adverse to the Applicant which it did not give the Applicant access to prior to the hearing.

   2.The Tribunal failed to follow the provisions of the Migration Act 1958 section 424A in that it did not provide the material adverse to the Applicant, which formed part of its reasons for rejecting the Applicant’s application, to the Applicant and provide the Applicant with an opportunity to comment on that material.

   3.The grounds set out in 1 and 2 above constitute a failure by the Tribunal to give genuine and realistic consideration to the Applicant’s application and act in a bona fide manner.

4. At the hearing before the Federal Magistrate, the appellant was represented by counsel with considerable experience in the area of migration law.  Counsel obtained leave from the Magistrate to file a further amended application.  In doing so, reliance on the amended application was abandoned.  The further amended application did not include the grounds contained in the amended application.  It contained four grounds not previously relied upon.

5. At the directions hearing in this matter on 4 November 2004 I drew to the attention of the appellant that the grounds set out in the notice of appeal to this Court were almost identical to the grounds of the amended application that had been abandoned before the Federal Magistrate.  I explained to him that difficulties would lie in the way of his obtaining leave to rely on those grounds on an appeal from the decision of the Federal Magistrate.  I directed that he file and serve written submissions by Thursday 11 November 2004. 

6. The appellant has filed written submissions in support of the appeal to this Court.  The written submissions are largely a reproduction of the written submissions filed in the Federal Magistrates Court in support of the further amended application to that court.  None of the written submissions is directed to the question of why the appellant should be granted leave in this Court to pursue grounds of complaint concerning the decision of the Tribunal that were abandoned before the Federal Magistrate.  The appellant has not addressed any oral submissions to me today, despite my invitation to him to do so, in support of an application to rely on grounds before this Court that were abandoned before the Federal Magistrates Court.  The Minister has opposed the grant of the leave, relying on the decision of H v Minister for Immigration and Multicultural Affairs (2000) FCA 1348; 63 ALD 43.

7. In my view, it is ordinarily contrary to the interests of justice to allow a person to challenge a judicial decision on the ground that the judicial officer did not give consideration to arguments that a represented party chose not to advance.  No argument has been advanced to take this case outside this ordinary rule.  Leave to rely on the grounds abandoned before the Federal Magistrates Court is refused. 

8. Part of ground 2 of the notice of appeal to this Court was not included in the amended application before the Federal Magistrates Court. That part of ground 2 makes complaint that the Federal Magistrate failed to find that the Tribunal failed to understand article 1A(2) of the Refugees Convention and the criterion set out in par 36(2)(a) of the Act for a protection visa. This ground might be thought to fall within grounds 2 or 3 or both of the further amended application to the Federal Magistrates Court. The appellant is entitled, in my view, to press this complaint as a ground of appeal to this Court. However, I note that the reasons for decision of the Tribunal open in the conventional way and suggest that the Tribunal had a proper understanding of article 1A(2) of the Refugees Convention. The Tribunal’s conclusions also suggest a proper understanding on the part of the Tribunal member of article 1A(2) of the Refugees Convention and par 36(2)(a) of the Migration Act. I am not satisfied that the Tribunal failed to understand article 1A(2) of the Refugees Convention and the criterion set out in par 36(2)(a) of the Act. This ground of appeal fails.

9. The appellant has today advised me that material now in his possession but not, as he acknowledges, before the Tribunal, shows that, contrary to the finding by the Tribunal, the change of government in Bangladesh has not resulted in an improved law and order situation.  Assuming the truth of what the appellant says, an error of fact of this kind does not take the Tribunal outside its jurisdiction. 

10. The appellant has also suggested today that he provided documents to the Tribunal that demonstrated that the law and order situation in Bangladesh was not under control, notwithstanding the change in government.  When asked to identify from the transcript when he did this the appellant identified the passage which shows his response to question 007 from the Tribunal member.  This passage is unclear as to the nature of the material being referred to and unclear as to whether the material was actually offered to the Tribunal as opposed to identified as being in the possession of the appellant.  The appellant accepts that the documents referred to in that section of the transcript were not taken into the possession of the Tribunal.

11. No evidence was placed before the Federal Magistrates Court, or indeed before this Court, on the question of what actually happened at or about the time that question 007 was addressed by the Tribunal member to the appellant.  The appellant did not have in Court today the documents that he suggests he offered to the Tribunal at that time.  The documents in his possession today are all documents that have either been taken from the Internet later than the date of the Tribunal hearing or, as I understand it, have come into the possession of the appellant later than the date of the Tribunal hearing.  More importantly, no complaint was made to the Federal Magistrates Court by counsel for the appellant of a failure or refusal by the Tribunal to take into account documents offered to it by the appellant.  The appellant offered no explanation for the failure of his counsel to raise this issue with the Tribunal other than that perhaps the law did not allow it. 

12. In all the circumstances, I have not considered it appropriate to adjourn the hearing of this appeal to allow the appellant to place evidence before this Court which might support what he now claims occurred before the Tribunal.  The matter was not pursued before the Federal Magistrates Court when the appellant had the benefit of legal representation.  The material before me is insufficient to provide a proper basis, in the interests of justice, for allowing the appellant to pursue this issue now. 

13. No challenge has been made by the appellant today to the decision of the Federal Magistrates Court so far as it deals with the issues that were argued before that court.  For the reasons succinctly put in the respondent’s submissions I agree that the decision of the Federal Magistrate does not disclose any error. 

14. This appeal is dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             17 November 2004

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 November 2004
Date of Judgment:	15 November 2004