SZCVU v Minister for Immigration
[2006] FMCA 760
•2 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZCVU v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 760 |
| MIGRATION – Refugee Review Tribunal decision – refusal of a protection visa (subclass 866) – no reviewable error – application dismissed. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.422B, 424A, 483A |
| Yo Han Chung v University of Sydney & Ors [2002] FCA 186 Re Refugee Review Tribunal & Anor; Ex parte Aala [2000] HCA 57 SAAP v Minister for Immigration [2005] HCA 24 |
| Applicant: | SZCVU |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG554 of 2004 |
| Judgment of: | Lloyd-Jones FM |
| Hearing date: | 2 May 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2006 |
REPRESENTATION
| Advocate for the Applicant: | The applicant appeared in person with the assistance of a Bengali interpreter |
| Counsel for the Respondents: | Ms R M Henderson |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The Refugee Review Tribunal is joined as the second respondent.
The application is dismissed.
The applicant is to pay the first respondent’s costs and disbursements of and incidental to this application.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG554 of 2004
| SZCVU |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Proceedings
These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), invoking s.483A of the Migration Act 1958 (Cth) (“the Act”). The application filed in the Sydney Registry of the Federal Magistrates Court of Australia on 3 March 2004, sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”). The Tribunal decision was made on 21 September 1998, affirming a decision of the delegate of the first respondent, made on
9 July 1997, refusing to grant the applicant a Protection visa (subclass 866). The applicant seeks unstated relief against the decision of the Tribunal.
On 1 July 2004, the first respondent’s solicitors filed a notice of objection to competency stating:
1.The respondent objects to the jurisdiction of this Court to try this Application on the grounds that:
(a) The decision is a privative clause decision.
(b) Contrary to s.477(1A) of the Migration Act 1958 (Cth) (“the Act”), the application has not been lodged within 28 days of the applicant being notified of the decision of the Refugee Review Tribunal; and
(c) By virtue of s.477(2) of the Act, the Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in s.477(1A).
The applicant in these proceedings is not to be identified pursuant to s.91X of the Act and has been given the pseudonym “SZCVU”.
The applicant has not sought to join the Tribunal as a party, however given that it is an exercise of the Tribunal’s jurisdiction that is under review, I will make the appropriate order that the Tribunal is joined as a party: SAAP v Minister for Immigration [2005] HCA 24 at [43], [91], [153] and [180].
Background
The Tribunal decision of Chris Keher, reference N97/18450, contains the following background information. The applicant who is a citizen of Bangladesh, arrived in Australia on 27 September 1996. On
2 January 1997, he lodged an application for a Protection visa (subclass 866) with the Department of Immigration under the Act. On 9 July 1997, a delegate of the Minister refused to grant the protection visa and on 25 July 1997, he applied to the Tribunal for a review of the delegate’s decision.(Court Book (“CB”) 67).
In his original application to the Department, the applicant claimed he was born in Kachua, Bangladesh, where he grew up, attended school and then worked as a cook. In September 1996, the applicant went to Qatar to improve his life and he claims never to have returned to Bangladesh. He is married and has a son. He claims that he joined the Bangladesh National Party (“BNP”) and participated in all Party programs. Within a short time was appointed the organising secretary for Kachua Thana. This position involved spreading the Party’s political views amongst the local people and obtaining support for the Party leader. He claims he became known as a BNP activist in the Chandpur district and Dhaka city. His involvement in the BNP resulted in participation in demonstrations against the then ruling Jatiya Party. As a result of his activities in the December 1984 elections, the applicant was charged with various offences, including the possession of arms. He was pursued by the police, and forced into hiding, until he could arrange a passport and visa to Qatar. The applicant claims he has been in contact with his family and friends in Bangladesh, who have informed him that the police are still looking for him. He was warned not to return.(CB 69-70)
The relevant background information in respect of the applicant’s visa application and subsequent litigation history is conveniently summarised in the written submissions prepared by Ms Henderson on behalf of the first respondent, which I adopt:
4.On 2 January 1997, with the assistance of a migration agent/solicitor, the applicant lodged an application for a protection visa (CB 1). The application contained no claims; the applicant indicated in it that he would submit a statutory declaration (CB 18, CB 19 etc).
5.In a statutory declaration made on 25 March 1997 (CB 42) and submitted by his migration agent/solicitor under cover of a letter dated 26 March 1997, the applicant claimed that he fled Bangladesh in 1985 and went to Qatar because a warrant for his arrest had been issued. He said he had been politically active in the “Bangladesh nationalistic party (BNP)” and that as a result, the police had filed false charges against him for possession of arms, “a most serious charge in Bangladesh.”
6.A delegate of the respondent refused the applicant’s protection visa application on 9 July 1997 (CB 47).
7.On 25 July 1997, through his migration agent/solicitor, the applicant lodged an application for review in the Refugee Review Tribunal (CB 53). The applicant stated in that document that his reason for making the application was that: “The Department made a mistake by not recognising me as a refugee” (CB 55).
8.The Tribunal acknowledged receipt of the application for review in a letter to the applicant dated 28 July 1997. It said in that letter: “Please note that you may send documents or written evidence at any stage of the case.” (CB 57).
9.The Tribunal wrote to the applicant on 4 September 1998, informing him that it was not prepared to make a favourable decision on the information before it, and inviting him to attend a hearing to give oral evidence (CB 61). Through his migration agent/solicitor (CB 62), the applicant declined the hearing invitation and consented to the matter being decided by the Tribunal “… on the information that it has, including the information I have provided as well as information from the Department of Immigration and Multicultural Affairs and other sources.” (CB 63)
10.On 21 September 1998, the Tribunal handed down a decision in which it affirmed the decision under review (CB 66).
11.Three years later, on 31 August 2001, the applicant became a party to the High Court proceeding of Lie. Pursuant to orders made in that matter by Gaudron J, he filed a draft order nisi in the High Court on 28 May 2003. His proceedings were remitted to the Federal Court. Emmett J ordered the applicant to file and serve a statement of contentions of relevant facts and law setting out particulars of his grounds and reasons why an extension of time should be granted. The applicant filed an outline of submissions that did not address the question of extension of time. He appeared at a hearing before Emmett J on 3 February 2004. His Honour gave an ex tempore judgment dismissing the application and ordered the applicant to pay costs.
12.The applicant filed an application for review in the Court on 3 March 2004, and an amended application on 17 September 2004.
Tribunal’s findings and reasons
In a brief judgment, the Tribunal held that the applicant had provided minimal and vague details about his claim. Also that various aspects of that claim and the applicant’s history required explanation. The Tribunal wrote to the applicant indicating that it was not possible on the information he had provided, to determine the nature and extent of any harm that he may have suffered in the past, or might suffer in the future. The applicant was invited to attend a Tribunal hearing however he declined the invitation to appear. The Tribunal member stated that the applicant’s claim amounts to little more than a series of unsupported and untested assertions. The Tribunal member held that on the small amount of information available, the Tribunal was not satisfied the applicant is a person to whom Australia has protection obligations under the Refugee Convention.(CB 71-72)
Application for review of the tribunal’s decision
On 3 March 2004, the applicant filed an application for review under s.39B of the Judiciary Act. On 17 September 2004, the applicant filed an amended application which contained the following grounds:
The Tribunal denied the Applicant procedural fairness and, in so doing, made a jurisdictional error.
Particulars
Applicant in making his claims in Australia;
The Tribunal relied on independent evidence as to the availability of false and fraudulent document in Bangladesh;
The Tribunal failed to afford the Applicant an opportunity to deal with adverse information, contained in the independent country information relied upon by the Tribunal, that was credible, relevant and significant to the Tribunal’s decision;
The Tribunal relied on independent country information,
there was a very high level of document fraud in Bangladesh,
that fraudulent documents were able to be obtained with the assistance of the police,
that it was also common to pay bribes to officials,
that lawyers would provide, for a fee, a letter advising that it was unsafe to return to Bangladesh (Department of Foreign Affairs and Trade (DFAT)) Cable 19732, 26 July 1998 CX 290; DFAT Cable D824, 24 December 1995 – CX 14160,
The Applicant relies on the decision of the Full Court of the Federal Court NARV v The Minister for Immigration, Multicultural and Indigenous Affairs (2003) ALR 494.
The Tribunal failed to comply with the mandatory requirement of the Migration Act 1958 (Cth) in that the Applicant was not provided with independent country information which was not “just about a class of persons of which the Applicant was a member” and which fell outside the meaning of section 424A(3)(a) of the Migration Act, where such information was relevant to the Tribunal’s decisions not only because it concerned the class of persons, but also because it went to a separate issue in the proceeding: NARV & Ors v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 203 ALR 494.
Particulars
The Applicant repeats the particulars to paragraph 1 above.
The procedures that were required by the Migration Act or the regulations to be observed in connection with the making of the decision were not observed.
The Tribunal ignored the merits of the claim and the Tribunal gave the decision on the basis of the dated information without any investigation.
The Tribunal failed to take a relevant consideration into account in exercising its power to determine the Applicant as a refugee.
That the decision involved a jurisdictional error of law involving an incorrect interpretation of the applicable law to the fact of the case was found by the Refugee Review Tribunal.
The Tribunal decision was unjust and was made with taking into account the full gravity of the Applicant’s circumstances and consequences of the claim.
The decision by the Tribunal is not justifiable by the evidences used in the decision. The used documents have indicated clear violation of human rights, which is tantamount to persecution. The Tribunal ignored its own information in deciding the case.
The decision was an improper exercise of the power confirmed by this Act or the regulations and the Applicant was deprived to attain natural justice.
Particulars:
The tribunal to consider in assessing the chance of the applicant being persecuted on his return to Bangladesh based on the fact on my political opinion.
The Tribunal’s satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.
Particulars:
The applicant repeats the particulars to ground
I will provide more detail at the time of my submission. (copied without alteration or correction)
Reasons
The applicant is a self-represented litigant and appeared with the assistance of a Bengali interpreter. In accordance with the orders of a Registrar made at Directions on 1 February 2005, the applicant has filed an amended application and written submissions in support of his application. When the applicant was invited to make oral submissions to the Court in support of his application, he indicated that he would rely upon the documents he had filed and had nothing further to say.
The first ground of the applicant’s amended application claims that he was denied procedural fairness because of the manner in which the Tribunal dealt with independent evidence regarding the availability of false and fraudulent documents in Bangladesh. The Tribunal decision makes no reference to any form of independent evidence in respect of false and/or fraudulent documentation. There is no reference in the Tribunal decision or the Court Book to any form of independent evidence. The Tribunal decision also makes no reference to the availability of false or fraudulent documents in Bangladesh. This ground has no relevance to the Tribunal decision and is rejected.
In the second ground of the applicant’s amended application, he claims that the Tribunal breached s.424A of the Act for failing to give him an opportunity to comment on independent country information. As pointed out at [11] above, the Tribunal made no reference to any form of country information in its decision. The reason for the Tribunal’s decision is quite clear. It does not rely on any independent evidence or country information. This ground must also be rejected.
The balance of the applicant’s amended application comprises of a series of assertions that the Tribunal decision involved error. None of these alleged errors are particularised or explained within the application. These claims amount to nothing more than a broad assertion that the Tribunal was wrong in the decision that it reached without identifying the nature of the error. At the end of the amended application, the applicant indicated that he would provide more details at the time of his submissions. The applicant did so in his written submissions filed on 20 April 2006, which raises a number of new issues not previously raised in the original application nor the amended application. The written submissions raise four issues: procedural fairness, s.422B of the Act, ignoring or not accepting the applicant’s claim and want of logic.
The first claim in the applicant’s written submissions is that he was not given the opportunity to provide documents to the Tribunal. This claim is made at paragraph 12(a), which also claims the Tribunal did not advise him to provide supporting documents. At paragraph 12(b), the applicant claims that if he had the opportunity to explain his situation to the Tribunal, the decision may have been made differently. At paragraph 12(c), he claims that the Tribunal should have raised with him its concern that details of his claims were “general and vague”.(CB 71) At paragraph 16, he claims that he was not permitted to give evidence. At paragraph 12(d), the applicant again claims that adverse information should have been put to him in order for him to respond.
The applicant filed an application for review with the Tribunal on
25 July 1997. The Tribunal wrote to the applicant on 28 July 1997 indicating to the applicant the procedure it would follow in the assessment of his review. In that letter, it indicated that if the initial “review on the papers” did not result in a decision in the applicant’s favour, he would be given an opportunity to attend a Tribunal hearing to give oral evidence. He was also advised that he may lodge any documents or written evidence at any stage in support of his application. The Tribunal next wrote to the applicant on 4 September 1998 staying that it had viewed all of the documentation and that it was not prepared to make a favourable decision on that information alone.
As I have said above, the applicant was invited to attend a Tribunal hearing and give oral evidence in support of his claim. The details as to how that would be achieved were clearly set out in the letter. At that time, the applicant was represented by a firm of solicitors, Parish Patience, who wrote to the Tribunal on 21 September 1998. The facsimile letter said that the applicant did not wish to attend the hearing and that the Tribunal should proceed to make its decision on the papers that it held. The Tribunal did so on 21 September 1998. On the information contained in the Court Book, the applicant cannot maintain the claim of lack of procedural fairness on the allegations that he has raised in paragraph 12(a) to (d) of his submissions. This claim must be dismissed.
At paragraph 12(c) and (e) of those submissions, the applicant claims that his case involves the operation of s.422B of the Act, which the Tribunal had failed to observe. The applicant’s claim is misconceived as no such issue arises in the circumstances of this case. The Tribunal decision was made in September 1998. Section 422B was not operative until 1 July 2002. Putting this to one side, at the time this decision was made the Tribunal was bound by the rules of natural justice, which was the legislative intent of s.422B. On the material available to the Court as supplied in the Court Book, and in the absence of any evidence or submissions to the contrary, the Tribunal appears to have observed all necessary requirements to meet its obligations under the law as it then stood.
The third claim made by the applicant in his submissions is that the Tribunal ignored or did not accept the applicant’s claims. At paragraph 12(a) of his submissions, the applicant claims that the Tribunal ignored the contents of his statement. The Tribunal included a detailed summary of the applicant’s statutory declaration under the heading “Claims and Evidence” in its reasons.(CB 69.7-70.4) It found that the material before it contained only “general and vague details” and observed that the applicant’s claims could have been explored further if he had attended the hearing.(CB 71.6) The Tribunal concluded that it was impossible to assess the applicant’s claims on the material before it.(CB 71.5) These aspects of the Tribunal’s reasons indicate that proper consideration was given to the contents of the applicant’s statutory declaration and that its contents were not ignored, but that it was not found to be persuasive.
As set out in the paragraph above, the Tribunal clearly indicated to the applicant that after reviewing all of the material that was before it, it was not satisfied that it could make a decision favourable to the applicant on that information alone. The Tribunal then extended an invitation to the applicant to both attend a Tribunal hearing and to submit any further documentation in support of his claim. However, the applicant declined both invitations.
In paragraphs 12(b), 14, 15 and 16 of his written submissions, the applicant claims that the Tribunal did not accept his claims. This submission essentially asks the Court to enter into merits review. Clearly, a merits review is not available in this Court: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [31] per Brennan CJ, Toohey, McHugh and Gummow JJ:
…any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.
The hearing in this Court is not a de novo hearing. It is a judicial review of the Tribunal’s decision and the Court does not make its own assessment of the evidence. Judicial review, unlike merits review focuses on the lawfulness of the earlier decision, not its appropriateness.
The fourth claim, at paragraph 12(a) of the applicant’s written submissions, is that there was a “want of logic” in the decision. The applicant has not explained how want of logic can be said to constitute jurisdictional error. After having found that the applicant’s written evidence was too vague and general to persuade it, and after its invitation to appear was declined, the Tribunal was compelled to affirm the delegate’s decision.
There remains the issue of delay. On 21 September 1998, the Tribunal affirmed the delegate’s decision. Three years later on 31 August 2001, the applicant became a party to the Muin and Lie class action: Muin v Refugee Review Tribunal& Ors (2002) 190 ALR 601. Pursuant to the orders made in that matter by Gaudron J, the applicant filed a draft order nisi in the High Court on 28 May 2003. Those proceedings were remitted to the Federal Court. His Honour Emmett J ordered the applicant to file and serve a statement of contentions of relevant facts and law, setting out the particulars of his grounds and reasons why an extension of time should be granted. The submissions filed by the applicant did not address those points. When the applicant appeared before Emmett J on 3 February 2004, His Honour gave an ex tempore judgment dismissing the application and ordering the applicant to pay costs.
There is an unexplained delay of three years between the date of the Tribunal decision and the applicant joining the Muin and Lie class action. In the letter from the Tribunal to the applicant on 22 September 1998 which attached a copy of the Tribunal’s decision, the applicant was informed of his right to judicial review by the Federal Court. That application for review has to be lodged within 28 days of notification of the decision. The applicant was also informed to seek legal advice before seeking review by the Court. On the information before me, the applicant appears to have taken no action for a period of three years. The Court may exercise its discretion to refuse relief because of an unexpected delay. In this respect, I am guided by Re Refugee Review Tribunal & Anor; Ex parte Aala [2000] HCA 57 at [51], [54]-[55], where Gaudron and Gummow JJ endorse the view of Gibbs CJ in The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty Ltd (1953) 88 CLR 100:
51.If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course…
54.…the discretion with respect to all remedies in s 75 (v) is not to be exercised lightly against the grant of a final remedy…
55.Some guidance, though it cannot be exhaustive, as to the circumstances which may attract an exercise of discretion adverse to an applicant is indicated in the following passage from the judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ in a mandamus case, R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd. Their Honours said:
"For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."
The applicant has failed to show why he should be permitted to proceed upon an application six years after the Tribunal decision, with a period of three years of unexplained delay, when no earlier action to seek judicial review of the Tribunal’s decision was pursued. Further, a previous attempt to challenge the Tribunal decision was dismissed in the Federal Court in S234 of 2003 v Refugee Review Tribunal [2004] FCA 493 per Emmett J.
Conclusion
The applicant appears before me as a self-represented litigant which places an obligation on this Court to independently consider whether an arguable case based on the material could be made out: Yo Han Chung v University of Sydney & Ors [2002] FCA 186.
Ms Henderson, appearing for the respondents, assisted the Court with written submissions which addressed all of the issues raised by the applicant’s amended application and his written submissions. The applicant relied on his amended application and written submissions, which appear to have been prepared for him by someone not familiar with the details of his particular case. As such, the documents do not achieve the objective of overcoming the problems in his original application. They raise generic issues probably found in review applications such as these, but are not directed to the present proceedings. Unfortunately, the applicant has no comprehension of the content of these documents or the issues that they raise. There are no proper particulars provided in support of the grounds in his application, or in the written submissions, that provide support for the relief claimed. I am satisfied that this application should be dismissed.
I am satisfied that an order for costs should be made in this matter. I order that the applicant is to pay the first 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:
Date: 1 June 2006
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