SZBQB v Minister for Immigration - [2005] FMCA 420

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBQB & ORS v MINISTER FOR IMMIGRATION

[2005] FMCA 420

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of a decision of Refugee Review Tribunal affirming a decision of a delegate of the Minister for refuse protection visas – applicants a family from Bangladesh – claim of well-founded fear of persecution in Bangladesh on the grounds of political opinion – the grounds “The tribunal concentrated in particular fact while ignored many other facts in this condition” and “the tribunal denied the evidentiary proof of my claim” and “the tribunal’s decision did not reflect the material facts of my claim” are no more than complaints about findings of fact and do not constitute grounds for judicial review.

PRACTICE AND PROCEDURE – Litigation guardian – one of three applicants is a minor – circumstances justifying dispensation with requirement for appointment of litigation guardian.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), s.475A
Federal Magistrates Court Rules 2001, r.11.08

Minister for Immigration and Multicultural Affairs v Durairajasingham (2000) 168 ALR 407
Kopalapillai v The Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547
SCAA v The Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668
The Minister for Immigration and Multicultural and Indigenous Affairs v JIA (2001) 205 CLR 507
The Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431
SBBS v The Minister for Immigration and Multicultural and Indigenous Affairs (2002) 194 ALR 749

First Applicant:

SZBQB

Second Applicant:

SZBQC

Third Applicant:	SZBQD
Respondent:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 2147 of 2003

Judgment of:

Scarlett FM

Hearing date:

4 April 2005

Date of Last Submission:

4 April 2005

Delivered at:

Sydney

Delivered on:

4 April 2005

REPRESENTATION

Solicitors for the Applicant:

No Appearance

Counsel for the Respondent:

Mr Potts

Solicitors for the Respondent:

Clayton Utz

ORDERS

The requirement for a litigation guardian to be appointed for the Third Applicant is dispensed with.
The Application is dismissed pursuant to Rule 13.03A (d) of the Federal Magistrates Court Rules 2001.
The Applicants SZBQB and SZBQC are to pay the Respondent’s costs fixed in the sum of $4300.00. I make no order for costs in relation to Applicant SZBQD.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2147 of 2003

SZBQB

Applicant

And

SZBQC

Second Applicant

And

SZBQD

Third Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for a review of a decision of the Refugee Review Tribunal. That decision was made on 21 August 2003 and handed down on 17 September. The decision affirmed the decision of a delegate of the minister not to grant a protection visa to the three applicants.
The applicants are a husband, wife and daughter. The daughter is a child and when the matter was before the Court on 5 November 2004

I ordered that the requirement for a litigation guardian to be appointed for the third applicant, the child, was to be dispensed with. When the Refugee Review Tribunal affirmed the decision of a delegate of the minister not to grant protection visas the applicants commenced proceedings in this Court. The application was listed for final hearing before me on 25 November 2004. Shortly before that date, by means of a letter dated 22 November 2004, the male applicant, the father, sought an adjournment. In his letter he said:
I would like to state that I was advised to attend hearing on

25 November at 2.15 pm, which was already listed in your Court. But unfortunately I cannot attend this hearing due to serious illness. I am sick and advised by a doctor for rest.
He then went on to seek an adjournment. I adjourned the matter until today. The applicant was advised of the adjourned date. And as the adjourned date is over four months since the hearing, there seems to me to be no reason why the applicant should not have been able to attend.
The applicant has not attended, even though the matter has been called on two occasions, at 23 minutes past 10 and at a quarter to 11. The male applicant father was not only called by his pseudonym but also by his name. There was no one there to answer the call.
The applicant filed an application seeking an order or a declaration to redirect his claims to the RRT for further consideration. He also sought an order that no action would be taken to remove him or presumably his family from Australia while that decision was pending.
The grounds of the application were specified on the second page. There are 10 and I will quote them:
1. The tribunal did not take into account the conviction of Court case against me in Bangladesh of a convention based reason.
2. The tribunal made his decision in bad faith.
3. The tribunal deprived me of the natural justice.
4. The tribunal denied the evidentiary proof of my claim.
5. The tribunal's decision did not reflect the material facts of my claim.
6. The tribunal has given a decision which was preset in the back of its mind.
7. The tribunal mixed up many facts with this decision which affected the decision.
8. The tribunal concentrated in particular fact while ignored many other facts in this condition.
9. The tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim; I will provide more details later."
The applicant did not provide any details later, so I give no consideration to ground number 10. The applicant, as I said, has not attended Court today. The applicant did attend the tribunal on

19 August 2003 and gave oral evidence. Only the male applicant, SZBQB, gave evidence, and the other two applicants made no specific claims of their own. They rely on their relationship to the male applicant.
I have read through the tribunal decision. I note that the applicant is not legally represented. And I understand that in such circumstances the Court should consider the decision itself in order to be satisfied that no jurisdictional error appears in the decision.
I read through the decision and I do not see any indication of jurisdictional error. Certainly none that has not been claimed by the applicant.
I have read the written submissions prepared by counsel for the respondent, Mr Potts. In his submission, which is very thorough, he noted at paragraph 7 that the claims made by the applicant were set out in full and at length by the tribunal in its reasons, at pages 133 to 137 of the Court book, and 142 to 145. The tribunal did not, however, find itself satisfied that the application should be successful.
The tribunal accepted the fact that the applicant had been attacked but there was no evidence as to who had attacked the applicant or why. The tribunal was not satisfied with the credibility of the applicant's evidence relating to why the applicant left his native Bangladesh. And did not accept that there was a warrant out for the applicant's arrest or that he was wanted on any charges.
The tribunal also regarded what the position would be if it were wrong in relation to those conclusions as to alleged false charges, and the tribunal concluded that the Bangladeshi Court were independent and could be relied upon to provide protection to those people who had been falsely charged.
The tribunal in due course found that the first applicant was not a refugee and it must follow the second and third applicants were not refugees.
I have quoted the grounds in review given by the applicant. In respect of the first one, that:
The tribunal did not take into account the conviction of a Court case against me in Bangladesh for a convention based reason,
Mr Potts submits, and in my view correctly, that this ground is incomprehensible insofar as it relates to the allegations of false cases or charges being made against the first applicant. The first applicant never alleged that he had been convicted but merely charged. The tribunal did consider false charges and he submits, properly in my view, that that ground must be rejected.
I will deal with the second and the sixth grounds together, which is the allegation of bad faith and the allegation that the tribunal gave a decision which was preset in the back of its mind. Those are allegations of bad faith and actual bias. Mr Potts has pointed out that an allegation of this kind is a serious matter and ought not to be made lightly. The first decision is a decision of the full Federal Court in respect of bad faith, namely SBBS v The Minister for Immigration and Multicultural and Indigenous Affairs [2002] 194 ALR 749 at paragraphs 43 to 48. And also in The Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431, paragraphs 7 to 11. An allegation of bad faith involves personal fault on the part of a decision maker. The mere fact of an adverse finding is not evidence of bad faith. The elements required to be proven, which were discussed by the Full Court in SBBS, have just not been made out. There is nothing to justify a finding of bad faith.
Turning to the question of bias, Mr Potts submits that bias in the form of prejudgment occurs where the decision maker's mind is so committed to a conclusion already as to be incapable of altercation whatever evidence or arguments may be presented. See The Minister for Immigration and Multicultural and Indigenous Affairs v JIA (2001) 205 CLR 507. And also The Minister for Immigration and Multicultural and Indigenous Affairs v SBAN previously cited.
A finding of actual bias is a grave finding and cannot be made lightly. The question is whether the decision maker's mind is open to persuasion. As to a finding of actual bias being made, I am referred to the decision of von Doussa J in SCAA v The Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668, paragraph 37.
I would say there is nothing in the facts and in the decision to justify findings of either bad faith or actual bias. Turning to the ground of denial of natural justice, Mr Potts submits correctly that there has been provided no particulars for a ground of denial of natural justice. No denial of natural justice is apparent on the face of the tribunal's reasons. I note that the first applicant did attend the tribunal, did give oral evidence and the facts of his matter appear to have been considered and given due weight by the tribunal. I agree that this ground should be rejected.
The fourth, fifth, seventh and eighth grounds, to my mind, can be dealt with together. Mr Potts submits that certainly grounds four, five and seven can be dealt with together, and ground 8 is essentially similar. They are nothing more than a complaint about the tribunal's findings of facts and the merits of the decision than a complaint that those findings were adverse to the applicant.
Turning to ground 8, where it is said that:
The tribunal concentrated in particular fact while ignored many other facts in this condition,
is basically a complaint about a finding of fact. To the extent that it alleges a failure to consider a relevant matter, nowhere does the applicant identify what that relevant matter was or why it was relevant. To my mind the ground:
The tribunal denied the evidentiary proof of my claim,
is no more than a complaint about a finding of fact, and it is not a ground for judicial review. The ground 5:
The tribunal's decision did not reflect the material facts of my claim,
is no more than a complaint about a finding of fact. It is not a ground for judicial review.
Ground 7:
The tribunal mixed up many facts with this decision which affected the decision,
no particulars are given as to which facts were mixed up with which others. To my mind it is a complaint about a factual finding. It is not a ground for judicial review.
The only ground that is left is the ninth ground:
The tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim.
In my view the evidence just does not support that claim. It is quite clear from the tribunal's decision that the tribunal did inquire as to the substance of the applicant's claim and the applicant gave evidence as to the fact that the tribunal did not believe the applicant's refugee claim. That is a risk that any and applicant has to take. It is purely a question of the merits of the appeal. That is a decision that remains with the tribunal par excellence.
Mr Potts submits generously, in my view, that the ground appears to be in part a complaint about actual bias. He refers to his earlier submissions about actual bias or bad faith and in my view the complaint that the tribunal had made up its mind without any inquiry regarding the applicant's claim is just not supported. There is no evidence of actual bias or apprehended bias that I can see.
The grounds set out by the applicant, all nine of them, do not disclose any reviewable error. None of those grounds have been made out, nor can I see any other reviewable error. As Mr Potts points out, referring to well‑known cases:
The tribunal's adverse findings as to the appellant's credibility were unobjectionable. Findings on credibility are the function of a primary decision maker "par excellence".
See Minister for Immigration and Multicultural Affairs and Durairajasingham (2000) 168 ALR 407 at paragraph 67. So long as the tribunal's credibility findings were open to it, no error is demonstrated in such conclusions. See Kopalapillai v The Minister for Immigration and Multicultural and Indigenous Affairs (1998) 86 FCR 547 at pages 558 to 559.
As Mr Potts submits, the findings made by the tribunal were clearly open on the evidence. I would comment that there is a depressing familiarity about the grounds set out in the application. They are grounds that appear before the Court regularly, even down to the grammatical errors. The grounds appear to have been recited almost as some sort of a mantra in order to bring an application before the Court. I have examined them thoroughly and not one of them has been made out. Of the grounds quoted, four and five, “denying evidentiary proof”, and “not reflecting the material facts of the claim,” and also seven, “mixed up many facts with this decision which affected the decision,” are all complaints which go directly to the merits. They are just not grounds for judicial review. There is no reviewable error. The application will be dismissed. I will require a transcript of my reasons for this decision.
The application is dismissed and I will note, pursuant to rule 13.03A (d), the first and second applicants, SZBQB and SZBQC, are to pay the respondent's costs, fixed in the sum of $4,300.
I make no order for costs against applicant SZBQD.
The application will be removed from the list of cases awaiting finalisation.
After the hearing had concluded, the Applicant sent a facsimile message to the Court, saying that he was unable to attend court as he heard “from a reliable source” that one Mr A[1], a resident of L[2], would be attending the hearing to act as an interpreter in his case. He said:
Due to his presence of this hearing session I will feel uncomfortable. Due to personal conflict and natural justice I am unable to attend this hearing in the presence of this interpreter.
[1] Name suppressed
[2] Name of suburb suppressed
I am not satisfied that the Applicant has shown any ground for failing to attend Court. In any event, I heard the matter on its merits, and the Applicant will need to appeal to the Federal Court if he wishes to challenge the decision. In any event, the person named was not the interpreter who attended Court for the final hearing of this matter.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: 11 April 2005