SZCDR v Minister for Immigration
[2005] FMCA 472
•14 April 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCDR v MINISTER FOR IMMIGRATION | [2005] FMCA 472 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reasonably arguable cause of action – application dismissed. |
Migration Act 1958 (Cth), ss.91X, 420(2)(b), 425A(3)
Judiciary Act 1903 (Cth), s.39B
Federal Magistrates Court Rules 2001 (Cth), r.13.10(c)
Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126
Minister for Immigration & Multicultural & Indigenous Affairs v Jia [2001] HCA 17
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
SBAU v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1076
NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713
NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228
NAQS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1137
| Applicant: | SZCDR |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2728 of 2003 |
| Delivered on: | 14 April 2005 |
| Delivered at: | Sydney |
| Hearing date: | 20 January 2005 |
| Orders made: | 14 April 2005 |
| Judgment of: | Lloyd-Jones FM |
REPRESENTATION
| The applicant appeared in person with the aid of an interpreter. |
| Solicitors for the Respondent: | Mrs E Warner Knight of Australian Government Solicitor |
ORDERS
The application be dismissed pursuant to Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) as disclosing no reasonable cause of action.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2728 of 2003
| SZCDR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
These proceedings were brought before this Court by an application filed on
2 December 2004 by the respondent in the main proceedings in the form of a Notice of Motion moving the Court for orders that the main proceedings be dismissed pursuant to Part 13, Rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth) as disclosing no reasonable cause of action. After a brief hearing of submissions from both parties, further interim orders were made setting out a revised timetable. The applicant was informed that if the orders were not complied with then the substantive application would be dismissed by the force of those orders. These final orders and the reasons for orders were subsequently made in Chambers.
The proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth) filed in the New South Wales District Registry of the Federal Magistrates Court of Australia on 11 December 2003 for a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 12 November 2003 affirming a decision of the delegate of the respondent made on 18 May 2001 to refuse to grant the applicant a protection (Class XA) visa.
Applicant’s background
The applicant in these proceedings is not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZCDR”.
The applicant, who claims to be a citizen of Bangladesh or India to enter Australia, arrived in Australia on 9 February 1997. On 8 May 2001 he lodged his latest application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act. On 18 May 2001 a delegate of the Minister for Immigration & Multicultural & Indigenous Affairs (“the delegate”) refused to grant a protection visa and on 19 June 2001 the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the delegate’s decision.
The applicant first applied for a protection visa on 6 or 7 March 1997. That application was refused on 8 April 1997. The applicant then lodged a series of appeals to the Tribunal and to the Federal Court: see Tribunal decisions N97/15503 dated 3 November 1998, N99/28498 of 25 August 1999 and N00/35814 of 25 January 2001 and Department files 97/002677 and CLF2001/23667. His appeal to the Federal Court following the Tribunal’s decision N00/35814 was dismissed by consent on 10 April 2001. The applicant was then permitted to lodge a fresh application for a protection visa.
According to the claim received by the Department on 8 May 2001, the applicant is a Bangladeshi citizen who was born in 1976 in the Nawabganj area in the Dhaka district of Bangladesh. He is a Muslim and claimed to have lived at the one address in the Nawabganj area from 1976 to October 1996. The applicant claimed he was educated from 1980 to 1992 and obtained a BA Degree from the Bangladesh National University. He stated he speaks, reads and writes Bengali and speaks Hindi and English. The applicant’s mother and siblings continue to reside in Bangladesh (Court Book p.62) (“CB”).
He stated he left Bangladesh for India at the Benapole border crossing on 30 October 1996 by paying a bribe. The applicant claimed he could not obtain a passport in Bangladesh because he was too scared to approach the authorities. His ten year Indian passport was issued in Calcutta on 18 December 1996 (which shows the applicant was born in West Bengal, India in 1968). The applicant claimed he left India on
1 February 1997 and travelled to Australia via Hong Kong, Taiwan and Thailand, arriving in Australia on 9 February 1997. His Australian visa was issued in Taiwan on 5 February 1997 (CB p.62).
From records held by the Department, the applicant has not been convicted of a crime or any offence in any country nor has he been removed or deported from any country or left any country to avoid being removed or deported (CB p.62).
Litigation history
A brief summary of the litigation history of this application is as follows:
a)On 9 February 1997 the applicant arrived in Australia.
b)On 6 March 1997 the applicant lodged an application for a protection visa with the Department.
c)On 8 April 1997 the delegate refused to grant the applicant a protection visa.
d)On 30 April 1997 the applicant lodged an application for a review of the delegate’s decision with the Tribunal.
e)On 3 November 1998 the Tribunal made a decision to affirm the delegate’s decision to refuse to grant the applicant a protection visa (Woodward decision).
f)On 1 December 1998 the applicant sought a review of the Tribunal’s decision in the Federal Court. The matter was heard by His Honour Justice Moore and orders were subsequently made to set aside the Tribunal’s decision and remit the matter back to a differently constituted Tribunal. The Court held that the Tribunal contravened s.420(2)(b) because it relied only on the absence of documents in rejecting the applicant’s claims.
g)On 25 August 1999 the Tribunal made a decision to affirm the delegate’s decision to refuse to grant the applicant a protection visa (Fordham decision).
h)On 12 April 1999 the applicant sought a review of the Tribunal’s decision in the Federal Court. The matter was heard by His Honour Justice Katz and orders were subsequently made to set aside the Tribunal’s decision and remit the matter back to a differently constituted Tribunal. The Court held that the Tribunal did not give the applicant the prescribed period of notice prescribed under s.425A(3).
i)On 3 May 2000 the respondent filed an appeal to the Full Court of the Federal Court.
j)On 18 September 2000 the appeal was dismissed by the Full Court of the Federal Court.
k)On 25 January 2001 the Tribunal made a decision to affirm the delegate’s decision to refuse to grant the applicant a protection visa (Kellaghan decision).
l)On 28 February 2001 the applicant sought a review of the Tribunal’s decision in the Federal Court.
m)On 10 April 2001 consent orders were signed and the application was dismissed. (The original protection visa application was incomplete, rendering the initial delegate’s decision invalid.)
n)On 8 May 2001 the applicant lodged an application for a protection (Class XA) visa with the Department.
o)On 18 May 2001 the delegate refused to grant the applicant a protection visa.
p)On 19 June 2001 the applicant lodged an application for a review of the delegate’s decision with the Tribunal.
q)On 12 November 2003 the Tribunal made a decision to affirm the delegate’s decision to refuse to grant the applicant a protection visa (Whitlam decision).
r)On 11 December 2003 the applicant lodged an application for a review under s.39B of the Judiciary Act 1903 (Cth) in the New South Wales District Registry of the Federal Magistrates Court of Australia for a review of the Tribunal’s decision.
s)On 10 August 2004 the applicant filed an amended application.
The Tribunal’s findings and reasons (Whitlam decision)
The Tribunal accepted the applicant’s claim that he was of Bangladeshi nationality (CB p.18). It further accepted the applicant’s evidence that he was involved in politics in one “small area of Bangladesh” and found that he had no prominence beyond that area (CB pp.65, 75).
The Tribunal accepted that the applicant had resided at the one address from 1976 to 1996 and stated that the applicant’s profile was so low that he had no need to change his residential address. In the event the applicant did face some difficulty in his local area, the Tribunal found he could easily relocate to another part of Bangladesh (CB p.76).
The Tribunal did not accept that false cases had been laid against the applicant as these claims had been “fatally discredited” in the Tribunal’s decision dated 25 January 2001 (CB pp.61-62, 75).
The Tribunal did not accept as credible the applicant’s claim that he had tried to live in other districts for protection (CB pp.62, 75) and that his inability to return to Bangladesh was due to fear of the internal party dispute, as these claims were first made at the hearing. Based on country information relating to the political situation in Bangladesh, the Tribunal found the applicant had no reason to fear a threat from his former enemies (CB p.76). The Tribunal also found that the situation in Bangladesh was such that the applicant could pursue politics with little difficulty, particularly outside the district in which the claimed difficulties had originated (CB p.76). In any event, the Tribunal found the applicant would be able to “secure justice” should this be necessary (CB p.76). Consequently, the Tribunal concluded the applicant did not have a genuine fear of persecution and that he had no well-founded fear of persecution within the meaning of the Convention (CB p.77).
Amended application (filed 10 August 2004)
On 5 March 2004 the matter was listed for directions and certain orders were made by consent including an order that the applicant file and serve an amended application giving complete particulars of the grounds relied upon together with any affidavit material in support of the application on or before 11 August 2004. On 10 August 2004 the applicant filed an amended application which contained the following grounds:
“1.The tribunal made on its decision in bad faith. Because the member evidence bias against me in the decision.
2.The tribunal deprived me of the natural justice.
3.The tribunal denied the evidentiary proof of my claim.
4.The tribunal’s decision did not reflect the material facts of my claim.
5.The tribunal has given a decision, which was preset at the back of it’s mind.
6.The tribunal concentrated in particular fact, while ignored many other facts in this condition.
7.The tribunal make up his mind without any inquiry regarding my claims. The tribunal failed to take into consideration of my genuine claims.
8.The Tribunal took into consideration the fact that I had taken the Tribunal on review to the Federal Court previously. This consideration was irrelevant to the decision in front of the Tribunal.”
Respondent’s submissions
For the purpose of this Notice of Motion the respondent tendered and applied for the affidavit of Angela Margaret Nanson sworn on
29 November 2004 (“the affidavit of Ms Nanson”) to be admitted into evidence. A Court Book prepared by the respondent solicitors was filed and served on 18 June 2004.
Mrs Warner Knight, Solicitor, appearing for the respondent, filed written submissions prior to the hearing which contained the following contentions:
a)
The grounds in the amended application did not disclose any reasonably arguable cause of action. With regards to grounds
2, 3, 4, 6 and 7 in the absence of detailed particulars it was not possible to respond in detail. It was noted from the Tribunal’s reasons that the evidence before it was extensively reviewed and considered and that the applicant was afforded an opportunity to fully present his claims and to respond to matters of concern.
The Tribunal was not required to make out the applicant’s case nor make any enquiries: Minister for Immigration & Multicultural & Indigenous Affairs v SCAR (“SCAR”) at [31].
b)With regards to grounds 1 and 5, an allegation of bias is a serious one which must be distinctly made and clearly proved: Minister for Immigration & Multicultural & Indigenous Affairs v Jia at [69]. As in SCAA v Minister for Immigration & Multicultural & Indigenous Affairs at [35]-[38], the applicant’s allegation of bias in this matter was nothing more than an assertion and, without more, cannot be sustained.
c)With regard to ground 8, the Tribunal’s decision made reference to prior applications to the Federal Court (CB p.58), but this was by way of background to the fact the applicant was able to file a fresh visa application and have the opportunity to fully present his claims. These facts were not relevant to the Tribunal’s consideration of the matter in the sense intended by the applicant.
Applicant’s submissions
The applicant indicated that he had not received the respondent’s Notice of Motion and supporting affidavit. The applicant confirmed that he had changed his address in June 2004 and had filed a Notice of Address for Service. It was noted that this form was on the Court file and stamped by the Registry as filed on 10 August 2004. The Short Minutes of Order agreed by consent at a directions hearing before a Registrar on 12 May 2004 listed the matter for directions on 20 January 2005.
Directions (20 January 2005)
The submissions made by the applicant that he had not received notification of the Notice of Motion were confirmed by the relevant documents on the Court file. The applicant’s amended address for service was different from that contained on the Notice of Motion and the error was acknowledged by the respondent’s solicitor. To enable the applicant to pursue his application, I made orders and advised him of the importance of complying with the timetable set down and the requirements of the Court to have pleadings supported by evidence before the application could proceed. The following orders were made:
“1.The applicant is to file and serve an amended application giving complete particulars of each ground of review to be relied upon by 21 February 2005.
2.The respondent has leave to file and serve any further written legal submissions in response to the amended application by 28 February 2005.
3.If the applicant does not comply with Order 1, the application will be dismissed in Chambers.
4.Liberty to either party to apply to the Court for further directions.”
The amended application filed on 10 August 2004 did not disclose any reasonably arguable cause of action. The problems with the amended application and the need to file a further amended application in accordance with the new timetable were discussed with the applicant in Court on 20 January 2005 with the assistance of a Bengali interpreter even though the applicant claimed to speak and understand English.
Although the applicant was in breach of the Court orders of 12 May 2004, he had been provided with an opportunity to rectify this problem and this was conveyed to him. Further, the importance of the revised timetable was explained to the applicant.
Applicant’s document (filed 21 February 2005)
On 21 February 2005 the applicant filed a document headed “Outline of My Submission”, the contents of which revealed that it was, in effect, a further amended application. However, as a number of documents have been filed in these proceedings I will continue to refer to the document as the “applicant’s document of 21 February 2005”. Two grounds have been pleaded (although not identified as grounds) in the document which were stated as:
“4.The Tribunal made its decision in bad faith.
5.Judicial review is also sought on the grounds that the Tribunal made error of laws being jurisdictional errors to determine the wrong issues and wrong assumption in relation to this matter.”
Under a subheading of “Bad Faith” there was material which, in effect, was particularisation of the first ground. The applicant complained that the Tribunal member referred to the fact that this matter had been before the Tribunal on a previous occasion. The applicant claimed that the Tribunal member, by referring to this fact, was being influenced by this fact and proceeded in his decision making process with the knowledge of a previous adverse finding of a differently constituted Tribunal. That suggestion was not in context with the decision as the comment arose that although the matter had been considered by the Tribunal and the Federal Court on a number of previous occasions the applicant was unable to produce any new and reliable material to support his claim.
The reference to the previous hearings did not contain a logical extension that the hearing and decision of the current Tribunal was purely following the reasoning or decision making path of any of its predecessors. A party ascertaining actual bias on the part of the decision maker carries a heavy onus. The allegation must be “distinctly made and clearly proven”: Minister for Immigration & Ethnic Affairs v Jia per Gleeson CJ and Gummow J at [69] and Kirby J at [127].
In its decision, the Tribunal member indicated that past and present claims of persecution by the applicant were not credible for nine distinct reasons (CB pp.75-76). The first of these was the passage that the applicant was referred to as the basis of the ground that the Tribunal member demonstrated bad faith (CB p.75.2). The comment was brief and relevant in the overall argument but was not the substantive material upon which the Tribunal relied to reach its decision. The following eight reasons were far more detailed and carried considerable weight in each of the propositions considered by the Tribunal in reaching its conclusion. If the reference to the preceding decisions was eliminated there would not be any difference in the outcome after consideration of the following eight points. Mere error or irrationality does not in its self demonstrate a lack of good faith: SBAU v Minister for Immigration and Multicultural and Indigenous Affairs per Mansfield J at [29]. Bad faith is not to be found simply because of poor decision making. It is a large step to jump from a decision involving errors of fact and law to find that the decision maker did not undertake its task in a way in which involved personal criticism: NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs per Allsop J at [24], quoted with approval in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs per Black CJ at [107].
The conclusion drawn by the Tribunal in respect of points 2-9 in its decision in respect of the applicant’s credibility clearly did not fall within the scope of poor decision making, error or irrationality.
The claim that it fell within the category of bad faith cannot be sustained. The limited amount of material contained in these paragraphs under the heading “Bad Faith” are not sufficient in any characterisation to have particularised that claim.
The second ground which the applicant identified as “Jurisdictional Errors” contained three separate subheadings, namely “Address”, “Relocation” and “Documents Issues”. These three issues form part of the nine reasons that the Tribunal found against the applicant on the grounds of credibility. Each are a finding of fact based on the applicant’s original application and the explanations given to the Tribunal member during the hearing.
In respect of the “Documents Issue”, a portion of a transcript of the Tribunal hearing was provided by the applicant. It appeared at Attachment A to the applicant’s document of 21 February 2005 and discussed the issue of the authenticity of the documents before the Tribunal. Clearly, the findings of the Tribunal are findings of fact: NAQS v Minister for Immigration & Multicultural & Indigenous Affairs per Hill J at [39]:
“While it can be said that failure on the part of the Tribunal to take any account at all of relevant material might constitute jurisdictional error, one has to be careful to distinguish that from matters of fact finding.”
Conclusion
Based on the material contained in the Court Book, the original application, the amended application, the affidavit evidence, the written submissions of the respondent and the applicant’s document dated
21 February 2005, there was nothing to indicate that the applicant could succeed at a final hearing if he were permitted to proceed on those amended pleadings. Consequently, as the applicant has not been able to disclose any reasonably arguable ground for review, I believe that the substantive application filed on 11 December 2003 should be dismissed.
I am satisfied that an order for costs should be made in this matter.
I order the applicant to pay the respondent’s costs and disbursements of and incidental to the application.
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.
Associate: Menna McMullan
Date: 14 April 2005
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