SZAYP v Minister for Immigration - [2005] FMCA 1696

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAYP v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1696

MIGRATION – RRT decision – Bangladeshi fearing persecution after publishing article about terrorists – Tribunal found no Convention reason – no error found – challenge to delegate’s decision had no legal purpose – application an abuse of process due to prior litigation.

Federal Magistrates Court Rules 2001, r.13.03A(d)
Migration Act 1958 (Cth), ss.415, 474(1), 477(1A), 483A

SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
SZAYP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1554
SZGMZ v Minister for Immigration [2005] FMCA 1549

Applicant:

SZAYP

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1908 of 2005

Judgment of:

Smith FM

Hearing date:

4 November 2005

Delivered at:

Sydney

Delivered on:

4 November 2005

REPRESENTATION

Counsel for the Applicant:

No appearance by or on behalf of the applicant

Counsel for the First Respondent:

Mr T Reilly

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The application is dismissed.
The applicant must pay the first respondent’s costs on an indemnity basis in the sum of $6,350.
Direct that no further application for review of the decision of the Refugee Review Tribunal handed down on 11 February 2003 reference N01/38636 or for review of the decision of the delegate of the first respondent dated 28 April 2001 or for review of any notification of those decisions shall be accepted for filing without prior leave of the Court.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1908 of 2005

SZAYP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The principal application in this proceeding is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), in which the applicant seeks “certiorari against the decisions”. Two decisions are referred to: the first is a decision of the delegate of the Minister taken on 28 April 2001 which refused an application for a protection visa lodged by the applicant on 22 March 2001. The second is a decision taken by the Refugee Review Tribunal (“the Tribunal”) following an application for review of the delegate’s decision which was lodged by the applicant. The Tribunal affirmed that decision in a decision of the Tribunal dated 16 January 2003 and handed down on 11 February 2003. The principal application also seeks “mandamus ordering rehearing” and costs.
I shall below address the grounds upon which this relief is sought.
The principal application was given a first court date before me on 17 August 2005. The applicant attended on that day and was assisted by an interpreter. The Minister foreshadowed an interlocutory application seeking summary dismissal of the application as an abuse of process of the Court. I gave directions setting the matter down for a final hearing on the applicant’s application today, as well as directing that the Minister’s motion should be returnable today for hearing.
I am confident that the applicant was on clear notice that his application would be heard and determined today. I am also satisfied that the Minister complied with my directions for the filing and service of her application, supporting affidavit and submission. My directions gave the applicant an opportunity to file an amended application and any submissions, but he has not done so.
When the matter was called today the applicant did not appear. In view of the history of the matter, which I shall recount below, I considered it appropriate to proceed under rule 13.03A(d)of the Federal Magistrates Court Rules 2001 “with the hearing generally”; i.e. to examine the merits of the applicant’s application and also to consider whether the Minister should be given any of the relief sought in the interlocutory application.
I shall address the merits of the applicant’s application first, and then consider the aspects of the case which suggest that it is an abuse of the process of the Court.
The applicant arrived in Australia in September 1999 on a student visa. On 22 March 2001 he applied for a protection visa in an application lodged by his solicitor, Adrian Joel and Co. In his application he indicated that he was a national of Bangladesh aged 21. He claimed protection from Australia by reason of events which had occurred after his arrival in Australia. In particular, he had caused an article to be published in a magazine circulating in Bangladesh in September 2000 which, according to his solicitor, “provided information regarding alleged terrorist activities in Dhaka”. He claimed that as a result of this publication his family was harassed and threats were made that the applicant would be killed, and that therefore he was entitled to protection as a refugee.
His application was refused by the delegate on 28 April 2001, largely on the basis that the applicant had not presented a copy of his article nor any other evidence. The applicant appealed to the Refugee Review Tribunal on 17 May 2001, and was represented by Adrian Joel and Co. He attended a hearing before the Tribunal on 13 January 2003, and did present some material to the Tribunal, including his article. The Tribunal said that the applicant told it that the contents of the article had been taken from his experiences whilst studying at college in Bangladesh, where he had met many of the people who later became terrorists and of whom he wrote.
The Tribunal records him describing these people:
The applicant stated he believes mentioning people’s names in the article was a “mistake”. He said that he was in college which was in the grounds of Dhaka University and that the terrorists had come from poor rural areas and lived in the University hostels and that is when he met them in 1994. He said they were used to “control” the university campus and that subsequently they dropped out of uni and became full‑time criminals or “terrorists”. He said they are not aligned with any particular political party but will gravitate to those who pay them the most money for their services. He said in his article he mentioned the names of 14 people. He said that the threats to his family included threats made to his unmarried sister and his mother has been so frightened that she avoids venturing out and usually shops very early in the morning. He said that at home was his mother, a widow, and his sister, and two brothers, one of whom works for the government and the other is in business. He said they have all received threats.
The Tribunal affirmed the delegate’s decision on two grounds. It said that it had no reason to doubt that the article the applicant wrote named criminal elements, and it was also prepared to accept that his family suffered harassment following its publication. However, it found “no basis for believing that any harm feared by the applicant is for a Convention reason”. This was because “the applicant has identified criminal elements who then wished to avenge themselves on the applicant for his having identified them”. In other words, the Tribunal could not find a Convention reason for the feared harm.
The second reason the Tribunal gave for affirming the delegate’s decision was:
Moreover, the Tribunal does not accept that there has been continuing harassment of the applicant’s family until the present, nor that the applicant would face harm upon return to Bangladesh.
It pointed to the lapse of time of two years, and the fact that the applicant did not intend to continue naming people. It said: “indeed he was only able to name those he did because of his personal association with them at college”.
The Tribunal concluded that “the applicant does not have a well founded fear of persecution for a Convention reason”. In my opinion, the reasoning of the Tribunal reveals no jurisdictional error.
The grounds of the application seeking to set aside both the delegate’s decision and the Tribunal’s decision are set out in the applicant’s application filed on 20 July 2005.
Ground 1 is directed at the delegate’s decision:
1.Constructive failure of jurisdiction going to satisfaction: misconception of duty by the delegate of the minister for immigration and multicultural and indigenous affairs.
Particulars
(a)The delegate held that the applicant could avail himself of protection in his country.
(b)The delegate found that it would not be unreasonable for the applicant to do so.
(c)It was not open for the delegate to satisfy it that it would be reasonable for the applicant to relocate.
It is true that the delegate does refer to the possibility of the applicant relocating if he returned to Bangladesh, but the delegate also pointed to other reasons for refusing the visa application. Moreover, there is no apparent substance in the claims concerning the delegate’s decision.
More significantly, there is no legal purpose in the applicant seeking to establish the legal invalidity of the delegate’s decision in circumstances where he enjoyed a right of merits review and pursued it to the extent of obtaining a determination of the Tribunal under s.415 of the Migration Act. For reasons which I have recently given in SZGMZ v Minister for Immigration [2005] FMCA 1549 at [23]‑[24], I consider that in those circumstances an application for judicial review seeking relief directed at the delegate’s decision should be refused, because such relief would be futile and serve no legal purpose.
Grounds 2 and 3 of the application are directed at the decision of the Refugee Review Tribunal:
1.Constructive failure of jurisdiction going to satisfaction: procedural unfairness by the Refugee Review Tribunal.
Particulars
(a)The applicant presented material to the Tribunal.
(b)The Tribunal failed to consider that material.
(c)The Tribunal failed to satisfy itself that nothing in that material could affect its decision.
2.Constructive failure of jurisdiction going to satisfaction: misconception of duty by the Refugee Review Tribunal.
Particulars
(d)The Tribunal held that the applicant could avail himself of protection in his country.
(e)The Tribunal found that it would not be unreasonable for the applicant to do so.
(f)It was not open for the Tribunal to satisfy itself that it would be reasonable for the applicant to relocate.
There is no merit in these contentions. The “particulars” under ground “1” are not proper particulars since they do not identify the material which is alleged not to have been considered. On the evidence before me it has no substance. Ground “2” is falsely premised since the Tribunal made no such findings.
For the above reasons I consider that the application must fail. The challenge to the delegate’s decision has not raised any jurisdictional error and would also be refused on discretionary grounds. No jurisdictional error is shown to affect the decision of the Tribunal. The Tribunal’s decision is therefore a privative clause decision for which relief is barred in the present case, both under s.474(1) and by reason of the lapse of time under s.477(1A).
A further reason for dismissing the application arises by consideration of the applicant’s history of litigation after receiving notice of the Tribunal’s decision. This was handed down on 11 February 2003.
On 16 July 2003, the applicant filed an application for review in this Court seeking review of the Tribunal’s decision. The application contained a familiar unparticularised list of grounds of judicial review. The applicant was given an opportunity to obtain advice under the free legal scheme and to file an amended application, but did not take that opportunity. His proceeding was listed before Driver FM on 16 August 2004. I am satisfied that his Honour satisfied himself that the applicant was on notice of that listing, before summarily dismissing the application due to the failure of the applicant to attend.
On 24 September 2004, the applicant filed an application for an extension of time to appeal from Driver FM’s order to the Federal Court. His application was listed at least once before Bennett J, and her Honour gave the applicant opportunity to file an amended draft notice of appeal and written submissions. On 24 November 2004, the applicant failed to appear at the hearing of his application, and her Honour dismissed it and gave reasons (see SZAYP v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1554).
On 17 December 2004, the applicant filed an application for special leave to appeal from the judgment of Bennett J to the High Court of Australia. His application followed a standard form including the allegation: “The Refugee Review Tribunal’s decision was affected by the decisions of the High Court Muin Vs. Refugee Review Tribunal …”.
On 22 June 2005, the Deputy Registrar of the High Court notified the Minister that the application “has been deemed to have been abandoned pursuant to the High Court Rules”. I assume this was due to failure by the applicant to comply with obligations in relation to the filing of supporting documents.
The applicant then commenced his present application in this Court on 20 July 2005. As I have indicated above, the document filed by the applicant has no apparent merit.
In the circumstances I have sketched above, it is clear to me that the applicant’s conduct in his previous litigation provides reason why the Court in its discretion in the present matter would refuse relief under the principles referred to by McHugh J recently in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [80].
In my opinion, they also reveal that the present proceeding is an abuse of process, although it is not strictly necessary for me to make a decision about this. I consider that the history justifies the award of costs in favour of the Minister covering both the application and the interlocutory application on an indemnity basis, and that the applicant’s history indicates that he is a person who files application in the Court without concern as to their merit, and may continue to do so for the purposes of continuing to qualify for bridging visas. I therefore think it appropriate to give a direction to the Court’s registry that no further application concerning the decision‑making on his visa application should be lodged without the prior leave of the Court.
RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty‑eight (28) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich‑Old

Date: 18 November 2005