SZCNY v Minister for Immigration and Multicultural Affairs

[2006] FCA 1092

FEDERAL COURT OF AUSTRALIA

SZCNY v Minister for Immigration & Multicultural Affairs
[2006] FCA 1092

SZCNY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 427 OF 2006

MADGWICK J
31 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 427 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCNY
APPELLANT

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE OF ORDER:	31 JULY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application to amend the Notice of Appeal be dismissed.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 427 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCNY
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	31 JULY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. When counsel for the appellant arrived late because, he said, the time on his mobile phone did not match the time that other people in Sydney are living by, he produced to counsel for the first respondent an outline of submissions which commenced with the announcement that the appellant would seek leave to amend the notice of appeal.  In the course of discussion, the proposed amendment itself was significantly amended.  The ultimately proposed amendment seeks to raise for the first time, on appeal, two related but distinct and entirely novel grounds of criticism of the subject decision of the Refugee Review Tribunal (‘the Tribunal’).

2. The first is that the court below erred in not finding that the Tribunal had constructively failed to exercise its jurisdiction by not perceiving that the appellant belonged to a social group consisting of Awami League supporters who are also significant business people.  The second is that the Tribunal jurisdictionally erred by failing to take into account a relevant consideration, namely the possibility that the appellant’s business interests would mark him out for special treatment by the Bangladesh Nationalist Party (‘the BNP’).

3. I reject the application for leave to amend the notice of appeal.  The amendment seeks to raise, as I said earlier, for the first time on appeal, two entirely novel points which were in no sense raised by the appellant at any time earlier.  The appellant had the assistance of a migration agent before the Tribunal and was represented by capable counsel, not known for a lack of inventiveness himself, before the Federal Magistrates Court.  The appellant is a well‑educated man said by his counsel to be a renowned businessman, to be a well‑off one, and to be a powerful one.  He chose to instruct his present counsel very late in the piece.  That counsel’s efforts show that inventiveness is alive and well at the Sydney bar.

4. In a series of refugee cases, some of which I have joined in, this Court has sought to indicate that, in a proper case, the fact that the appeals are by way of re-hearing may indicate that it is appropriate not to apply against an indigent applicant for refugee status, standards and considerations that might be appropriate in the case of well‑resourced corporate or other litigants locked in litigious conflict.  However, in no case has the Court not been mindful of the necessity for an exceptional case to be shown to warrant relaxation of the ordinary rules.  The ordinary rules are that the contest is primarily conducted in the court of first instance and new material ought not be allowed on appeal except in unusual circumstances.  It certainly should not be sprung on the unsuspecting opponent after the time fixed for commencement of the hearing of the appeal.  Nothing about the appellant’s circumstances that I have heard indicates that the Court should venture into a beneficial exercise in his favour of the discretion. 

5. In any case, the prospects of success in relation to the matters sought to be raised appear, as at present advised, remote.  The case was never presented as one of the appellant belonging to a particular social group in any way different from the Awami League, a political party; his case, purely and simply, was that he feared persecution for reasons of his political opinion which favoured and supported that party.  There never was any suggestion that he was at any added risk because he was a businessman.  It is well established that where material before the Tribunal fairly raises a number of ways in which the applicant might qualify for refugee status, that those various ways should be considered.  But it is not for the Tribunal to attempt to rival the inventiveness of the Sydney bar, to which I referred, in attempting to tease out every conceivable way in which imagination might characterise an applicant’s claims. 

6. Further, it remains an integer of the supposed social group that the appellant was an Awami League activist and it is implicit in the supposed consideration, said not to have been taken into account, that it was a relevant consideration because he was an Awami League activist.  The Tribunal member dealt with the Awami League activism claims and it is fanciful to think that by any stretch he could have come to a different view had he considered the supposed social group, or the supposedly relevant consideration. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:
Dated:       21 August 2006

Counsel for the Appellant:	Mr J Azzi
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 July 2006
Date of Judgment:	31 July 2006