SZBQV v Minister for Immigration
[2004] FMCA 366
•16 June 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBQV & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 366 |
| MIGRATION – Review of RRT decision – where Court ordered the applicant to file and serve amended and particularised application – where applicant represented by solicitor – where the amended application relied on repealed legislation – where matter received further directions hearing - whether consent orders made by Registrar should be vacated in respect of self-executing order that failure to file and serve further amended application would result in dismissal and costs – where further amended application filed but not served – where despite order dismissing application a further amended application was filed – whether this document should be taken to have been validly filed – whether findings and reasons of the Tribunal evidences bias – whether applicant seeking merits review by the Court – whether Tribunal was imposing a requirement on applicant to modify his behaviour. |
SZBNX v MIMIA [2004] FMCA 365
NARE v MIMIA [2003] FCA 554
Appellant S395 v MIMA [2003] HCA 71
NAEB v MIMIA [2004] FCAFC 79
| Applicant: | SZBQV, SZBRC, SZBRD & SZBRE |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 2175 of 2003 |
| Delivered on: | 16 June 2004 |
| Delivered at: | Sydney |
| Hearing date: | 7 June 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr B Levet |
| Solicitors for the Applicant: | Bharati Solicitors |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The Orders of Registrar Hedge dismissing the application for review stand.
Applicant to pay the respondent’s costs before the Registrar as agreed in the sum of $1,500.00.
Costs of these proceedings reserved.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 2175 of 2003
| SZBQV, SZBRC, SZBRD & SZBRE |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
These proceedings were heard together with proceedings in Matter SZBNX v MIMIA [2004] FMCA 365 on 7 June 2004 and involved a similar factual matrix.
In this case the applicant and his family are citizens of Bangladesh. They arrived in Australia on 22 August 2002. On 30 September 2002 they lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs. On 7 November 2002 a delegate of the Minister refused to grant protection visas and on 27 November 2002 the applicants applied for review of that decision. The first named applicant gave oral evidence to the Tribunal on 24 July 2003. The other three applicants rely on their membership of his family for their protection. The Tribunal made its decision to affirm the refusal of the delegate to grant a protection visa on 12 September 2003 and handed it down on 8 October 2003.
On 16 October 2003 the applicants, through their solicitor Mr Bharati, filed an application in this court seeking review of the decision of the Tribunal. The grounds of that application were:
“1.The RRT made a jurisdictional error when it had not considered the correct question.
2.The decision of the RRT involved an error of law being incorrect application of the law to the facts as found by the person who made the decision.
3.The Tribunal member made the decision based on the existence of a particular fact and that fact did not exist.
4.The Tribunal member failed to take account of a relevant consideration under s 476(1)(b), (d) or (e) of the Migration Act.”
An affidavit was filed with the application stating that the applicant was closely associated with high officials of the Awami League and that the Tribunal did not believe in those associations, understand the political culture of Bangladesh or that his family were harassed and mistreated by BNP workers and their associates Jammat-e-Islami. He also complained that he was not provided with procedural fairness because he was not told what type of questions would be raised at the hearing and it was very difficult to provide information and documents from Bangladesh when he was not in the country.
On 19 February 2004 short minutes of order were made at the directions hearing before the Registrar which included:
“1.The applicant file and serve an amended and fully particularised application together with an affidavit in support and any evidence upon which he proposes to rely on or before 4 March 2004.
2.In default of order 1 the respondent’s solicitors may file and serve a notice of motion for summary dismissal and have liberty to approach the associate to the docket Federal Magistrate to obtain a date for the hearing of that notice of motion.”
On 4 March 2004 an amended application was filed and that amended application (like the original application) pleaded s.476 of the Migration Act which had been repealed in October 2001. This difficulty was communicated to the applicant’s solicitors by the respondent’s solicitors in a letter of 9 March. The matter was listed before the Registrar on 18 March when by consent the following orders were made:
“1.The cost of todays directions hearing fixed in the amount of $300.00 be paid by the applicant’s solicitors Mr Jyoti Bharati personally within twenty-one days of todays date pursuant to Part 21, Rule 21.07(1) of the Federal Magistrates Court Rules.
2.The applicant file and serve a further amended application for judicial review clearly identifying the grounds of jurisdictional error relied upon and confirming particulars of every ground of review relied upon on or before 8 April 2004.
3.If the applicant fails to comply with order 2 by 8 April 2004 the application is dismissed by force of these orders with costs fixed in the sum of $1,500.00.”
It was accepted for the purposes of these proceedings that the applicant did file by fax on 8 April 2004 a further amended application entitled “Amended Application” and stamped as presented on 16 April 2004. The grounds of this application are:
“The Refugee Review Tribunal failed to disclose the particular construction it gave to the information from the different independent sources. Such failure amounted to a denial of procedural fairness.
If the reliance was going to be placed to this effect on country information about the Bangladesh (Awami League party) which is information from sources other than the applicant, then, the applicant be informed of the specific country information to be used against applicant and given an opportunity to respond it and in this case the applicant was not given an opportunity to contest at any time prior to the RRT decision.
The Tribunal did not use the country information as specific however, the general information gathered by the Tribunal considered to weigh against applicant’s case in the final outcome. The Tribunal used all the information for a matter of reasoning and evaluation of the applicant’s case for the protection visa. The applicant claims that the Tribunal made a jurisdictional error when he was not informed about the important section of the information on which the decision was made.
The Tribunal formed the opinion about the applicant’s political profile before it made decision. The Tribunal formed the view that he has no fear of persecution. Any letter supplied to the Tribunal that he was not a member of the Awami League formed tribunal Member’s opinion. The Tribunal did not believe on the statement forwarded by the applicant (PP 102-103 GB). The applicant claims that the Tribunal was influenced by any biased and wrong information about his past political profile in the Awami League Party. The applicant claims that he was denied procedural fairness when the Tribunal member formed the view about him before the hearing.”
The final paragraph of this application appears to be alleging a lack of good faith on the part of the Tribunal. These allegations are subject to Order 54B Rule 2 of the Federal Court Rules which have been adopted in the Federal Magistrates Court pursuant to Schedule 3 of those Rules. The Rule relevantly states:
“2(2) [Particulars required]
If the grounds of the application include an allegation of fraud or bad faith, the application must give particulars of the alleged fraud or bad faith.”
The applicant sought to file and now rely on a further amended application presented on 27 May 2004. This application includes the s.61 of the Constitution point raised and considered in SZBNX v MIMIA [2004] FMCA 365 but also that the Tribunal erred in relation to certain findings of fact:
“2(a)The Tribunal having regard to the evidence before it erred in holding (at paragraph 65) that there was adequate state protection available to the Applicant in Bangladesh.
PARTICULARS
(i)The failure of the police to protect him in the October 2001 election (paragraph 29).
(ii)The statement of police that political violence was usual at election time and that the applicant security could not be guarantee with such a small police force (paragraph 29).
(iii)The inadequate response of the police to the politically motivated attack on the Applicant in his car on May 2002 (paragraph 34).
(iv)The arrest, detention, interrogation and torture of the Applicant by police in 1996 (paragraph 58).
(v)The recent detention and torture of his brother Salim by government authorities (paragraph 35).
(b)Having found (paragraph 62) that the Applicant suffered politically motivated violence in 1996, October 2001, and May 2002, the Tribunal erred in holding:
(i)That the 1996 incident was “an isolated incident and not part of any systematic and discriminatory (sic) aimed at the Applicant as discussed in Section 91R of the Act” (paragraph 58).
(ii)That the Applicant’s fears of a repeat of the 2001 incidents towards himself and his family were not well founded (paragraph 59).
(iii)That the incident in May 2001 “does not amount to systematic and discriminatory (sic) aimed at the Applicant as discussed in Section 91K of the Act” (paragraph 62).
(c)The Tribunal (in paragraph 67) erred in seeking to unlawfully impose a prudence or discretion requirement on the Applicant’s future political activities should he return to Bangladesh; alternatively
(d)The Tribunal erred, having made findings as to the particular circumstances in which politically motivated violence was directed at the Applicant on past occasions in holding that he could “engage in political activity in support of his party without putting himself into situations where he would risk being involved in violence” (paragraph 67).
(e)The decision of the Tribunal was unreasonable and against the weight of the evidence.
(f)The use made by the Tribunal of so called “independent country information” was in all the circumstances procedurally unfair.”
It seems to me, with respect to the draftsman of this application that what is being sought is not review but a decision based upon an application in the nature of a rehearing that the Tribunal came to a wrong conclusion on the facts. That, of course, the Tribunal cannot do. As Allsop J said in NARE v MIMIA [2003] FCA 554 at [10]:
“What the applicant may not well appreciate, not being a lawyer, is that the process and purpose of review to this Court dies not, and cannot, involve simple re-finding of facts found by the Tribunal. Rather, the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully - for instance asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act 1958 says must be dealt with, not dealing with matters extraneous to its task and correctly understanding the law to apply. It is not the Court’s job to review the factual findings of the Tribunal unless their quality or lack thereof is such as to betray a failure to undertake properly the required task. This is why it is not open to the primary judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal.”
Sub-paragraphs 2(c) and 2(d) appear to be raising points based upon the judgment of the High Court in Appellant S395 v MIMA [2003] HCA 71. The majority judgments in that case found that a Tribunal cannot base its determination that an applicant lacks a well-founded fear of persecution on a finding that an applicant would act discretely. Consideration must be given by a Tribunal to whether an applicant’s fear of harm influences their behaviour. The decision of the Full court in NAEB v MIMIA [2004] FCAFC 79 demonstrates that a Tribunal will not be found to be in error merely because it concludes that an applicant would act in a low-key or discrete manner as essentially such findings relate to the Tribunal’s power to assess the credibility of applicants.
In relation to these proceedings I remain of the view which I expressed in SZBNX, that the interests of justice require an applicant to abide by orders of the court and that it should only be in exceptional cases that a failure to abide by orders to which the applicant, through his legal adviser, has consented should be excused. I am prepared to accept that in the context of an application made by a person seeking asylum the special circumstances could include a recasting of the case in a compelling form. I am not satisfied that this is what the further amended application does. It appears from a reading of the decision of the Tribunal that most of the independent country information upon which the Tribunal relied was put to the applicant for comment. I am of the view that the only seriously arguable matters are those raised relating to the alleged unlawful imposition of a prudence or discretion requirement. A close reading of the relevant paragraph of the Tribunal’s decision at [CB 133] indicates that the Tribunal made a finding of fact that the activity likely to be engaged in by the applicant would not involve him in a real chance of experiencing violence at the levels described in s 91R of the Migration Act. It also found not that he “could engage in political activity without putting himself into situations where he would be at risk of being involved in violence” but “would” do so. This is again a finding of fact by the Tribunal not the imposition of a condition. I do not believe that the further amended application sufficiently recasts the applicant’s claim to evidence a compelling reason to set aside the self executing orders, which came into effect by virtue of the applicant’s failure to serve the further amended application or to properly particularise it as required both by those orders and by Order 54 Rule 2.
I dismiss the application. The result is that the orders of Registrar Hedge will stand and that the application remains dismissed. Under those orders the applicant must pay the respondent’s costs agreed in the sum of $1,500.00. As indicated at the end of the hearing I will, upon the handing down of this judgment, hear the parties as to costs including as to whether or not costs should be personally paid by Mr Bharati.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 16 June 2004
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