SZBSQ v Minister for Immigration
[2004] FMCA 338
•20 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBSQ & ORS v MINISTER FOR IMMIGRATION | [2004] FMCA 338 |
| MIGRATION – Application for review of RRT decision – where Registrar dismissed application for protection visa – where applicant failed to attend directions hearing or the adjourned second directions hearing – application for review of Registrar’s decision made out of time – where applicant did not attend Tribunal hearing – whether the orders of the Registrar should stand. |
NAEB v MIMIA [2003] FCA 719
MIMA v Jia [2001] 205 CLR 507
SCAA v MIMIA [2002] FCA 668
| First Applicant: | SZBSQ |
| Second Applicant: | SZBSR |
| Third Applicant: | SZBSS |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 2261 of 2003 |
| Delivered on: | 20 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 20 May 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| For the Applicant: | Applicant in Person |
| Solicitors for the Respondent: | Ms A Houlton |
ORDERS
Application for review dismissed.
The first applicant (the second and third applicants being minors) to pay the costs of today assessed in the sum of $800 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 2261 of 2003
| SZBSQ |
First Applicant
| SZBSR |
Second Applicant
| SZBSS |
Third Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
There comes before me today an applicant who has filed two documents purportedly in the Federal Court. The first being an application for extension of time to file and serve a notice of appeal, dated 12 May 2004. The second being a notice of appeal of the same date to which is attached an affidavit. The notice of appeal seeks to appeal from the whole of the judgment:
Of the single Judge of the Federal Magistrate's Court by Raphael FM given on 18 March 2004 at Sydney Registry. [sic]
I did not give any judgment on 18 March 2004 in this matter. The judgment referred to was an order of Registrar Hedge, acting as a Registrar of this court, dismissing an application made to this court pursuant to Rule 10.01(2)(b) of the Federal Magistrates Court Rules for the non-attendance of the applicant at what was the second directions hearing. There is on file an affidavit of Althea Houlton, the solicitor for the respondent, which exhibits two letters (exhibit B) and (exhibit D) which make reference to the directions hearing and to the adjourned directions hearing ordered by the Registrar after the applicant did not attend the first directions hearing.
The appropriate application to the court would therefore be an application under Part 20 Rule 20.01 for review of the decision of the Registrar, together with an application under Rule 20.01(2)(a) for an extension of time. The time limited by Rule 20.01(1)(c) is seven days. That means that the applicant should have filed her notice seeking review on or before 25 March 2004. She did not file the document, which I have accepted as an application for review, until 12 May 2004.
In giving consideration as to whether or not I should exercise my discretion to extend the time for review and then effectively conduct a directions hearing I must have regard to three matters. The first is the applicant's excuse for not attending the earlier two directions hearings. The second is the applicant's excuse for not filing the notice for review within the time limited. And the third matter is the utility of permitting the application to continue.
In regard to the first matter the applicant says in an affidavit which is attached to the notice of appeal document, that because of lack of skills in the English language she misunderstood the date of the directions hearing:
“and then I was not informed of the second hearing (at least I did not receive any letter informing me about the second hearing date). Because of the above mentioned reasons I missed an opportunity to attend the direction hearing.”
I have already referred to Ms Houlton's affidavit. I note that the letters which were sent to the applicant were sent to her address, which is the address which is found on the original application. Ms Houlton tells me that the letters which she wrote were not returned to her. I am unconvinced that the letter providing the applicant of advice of the second hearing date was not received. It is for the applicant to ensure that she complies with the requirements of the Court to attend these directions hearings. The second matter has not been discussed at all by the applicant in her affidavit. She gives no excuse for her delay in failing to file her application for review for some two months. It seems from what she told me today that she leaves these matters very much in the hands of her brother-in-law who, she told me, wrote the affidavit and the notice of appeal. This does not to my mind excuse her.
The third matter that I must consider brings me to the decision of the Tribunal. I have read the decision of the Tribunal which is contained between pages [CB 91] and [CB 121]. I should say straight away that the decision was given after the applicant had failed to attend an adjourned hearing of the Tribunal notwithstanding that she had been given notice of the date of the adjournment.
The applicant's claim to have a well-founded fear of persecution for the Convention reason of political opinion arises out of her claimed association with the Awami League. She also claimed to fear persecution from fundamentalist Muslims, as well as from the current BNP government in Bangladesh and said in her submission to the Tribunal that the delegate had not given her the opportunity to submit relevant supporting documents. No further relevant supporting documents appear to have been submitted to the Tribunal, although I note that between [CB 37] and [CB 53] some documents were annexed to her application for asylum.
The applicant also claimed that she was a member of the Taslima Nasreen fan club. Ms Nasreen is a well-known writer who was required to leave Bangladesh because a fatwah was ordered against her.
The Tribunal considered the claims made by the applicant so far as it was able to, and then proceeded between [CB 95] and [CB 119] to set out in great detail some independent country information concerning the situation in Bangladesh. The Tribunal accepted there were undoubtedly people in Bangladesh who were at risk of persecution, and that this would include some opposition figures, but it is stated at [CB 120]:
“ I am satisfied that the applicants are Bangladeshi nationals who arrived in Australia in 2000. They are mother, son and daughter. Unfortunately, their other claims are not supported by any evidence. They are not even supported by evidence which the applicant mother herself could give.
On the evidence available I am not satisfied that the applicant mother has a genuine fear of persecution or that her claims are true. I do not accept, on the evidence available, that the applicant mother was an influential and active supporter and office-bearer of the Awami League or that she was known to hold secular opinions or was a member of the Taslima Nasreen fan club.
I do not accept false cases were issued against the applicant mother under the Explosive Substances Act or that a warrant was issued and police started visiting her residence and family.
I do not accept on the very limited evidence available that there is a real chance that the applicant will be killed by BNP thugs, or arrested, detained and tortured by the BNP led government, or killed by fundamentalist Muslim terrorists.
On the evidence available, I am not satisfied that the applicants have a genuine or well-founded fear of persecution.”
It seems to me that the Tribunal was entitled to come to this opinion on the basis of the evidence before it, which consisted only of a statement by the applicant, the decision of the delegate and the delegate's review of the applicant's claims to him, and the rather general country information provided by the applicant. The Tribunal would also have had before it the information found at [CB 75], being part of her application for review to the Tribunal.
In the absence of an opportunity of discussing these matters with the applicant, the Tribunal was entitled to prefer the country information it cites about the situation in Bangladesh, and to doubt the veracity of some of the applicant's statements. A Tribunal decision is not a decision made after a trial of proceedings, it is a decision made on the basis of an inquisitorial process in respect of which the Migration Act requires only that the Tribunal be satisfied of certain facts. The responsibility of satisfying the Tribunal lies with the applicant.
As Jacobson J said in NAEB v MIMIA [2003] FCA 719 at [62]:
“ It was for the applicant to make out his own claim. Procedural fairness did not require the RRT to assist him to make his case.”
I have taken all these matters into consideration and have come to the view that there would be no utility in allowing the applicant to proceed in this matter. The possibility of success in her claim in negligible. She has not indicated in her application any detailed grounds as to why the Tribunal may have fallen into jurisdictional error in the manner in which it came to its conclusions. She refers to the Tribunal having made a decision in bad faith. This is an allegation which must be distinctly made and clearly proved: MIMA v Jia [2001] 205 CLR 507 at 531,546.
A finding of actual bias against a decision maker is a grave condemnation of the ability of the decision maker to discharge his or her functions with impartiality: SCAA v MIMIA [2002] FCA 668 per von Doussa J. No particulars of that allegation are provided. She says that the Tribunal deprived her of natural justice. She did not turn up to the Tribunal hearing. It will be difficult for her to make that allegation successfully. She claims the Tribunal denied the evidentiary proof of her claim. I have seen this phraseology before. I have never really understood what it meant. I still do not understand what it means.
She says that the Tribunal's decision did not reflect the material facts of her claim. I dispute this. The Tribunal seems to me to have taken her claims and considered them all. She says the Tribunal had given a decision which was pre-set in the back of its mind. She means by this that the Tribunal had predetermined the matter. This is a variation on the lack of bona fides and the same high level of proof is required. No details were given. She says that the Tribunal has mixed up many facts with this decision which affected the decision.
She does not explain which facts have been mixed up or how they affected the decision. My reading of the document would not give this ground any comfort. She says that the Tribunal concentrated in particular fact while ignored many other facts in this condition. I have seen this phraseology before, I am as confused today as when I first saw it. She said the Tribunal made up its mind without any inquiry regarding her claim and he did not believe her genuine convention based refugee claim. This is an allegation that goes to the merits and is not one which this court can consider.
Finally, she says, she will provide more details later. Those words were written and dated 21 October 2003 and as at 20 May 2004, no further details have been seen.
I decline to grant the applicant leave to file her application for review out of time. I dismiss the application for review. The order of Registrar Hedge will stand. The application is dismissed. I order that the first applicant (the second and third applicants being minors) pay the respondents costs of today which I assess in the sum of $800 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
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