SZDFO v Minister for Immigration

[2004] FMCA 391

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDFO v MINISTER FOR IMMIGRATION [2004] FMCA 391

MIGRATION – Review of RRT decision – where application for judicial review dismissed by the Federal Court following non-appearance by applicant on two occasions – where applicant did not seek to have that order vacated – where application for judicial review lodged in Federal Magistrates Court – whether findings and reasons of Tribunal evidence jurisdictional error – whether applicant essentially seeking merits review – whether conduct of applicant’s previous legal advisers relevant to whether applicant denied procedural fairness.

Federal Court Rules O.32 r.2, O.35 r.7

NAHR v MIMIA [2004] FCAC 10
B41 of 2003 v MIMIA [2004] FCA 30

Applicant: SZDFO

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFIARS

File No: SZ 998 of 2004

Delivered on: 11 June 2004

Delivered at: Sydney

Hearing date: 11 June 2004

Judgment of: Raphael FM

REPRESENTATION

For the Applicant: Applicant in Person

Counsel for the Respondent: Mr T Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. Application dismissed.

2. Applicant to pay the respondent’s costs assessed in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 998 of 2004

SZDFO

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. The applicant in this matter is a citizen of Bangladesh.  He arrived in Australia on 7 September 1996.  He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 2 May 1997.  The delegate declined to provide the applicant with a protection visa by decision made on 30 May 1997.  The applicant sought review of that decision by the Refugee Review Tribunal on 30 June 1997.  On 1 July 1998 the applicant attended a hearing with the Tribunal and on the same day the Tribunal wrote to him seeking his comments on certain matters.  In essence these matters related to certain information which the applicant had given to the Tribunal about his membership of the Freedom Party at a time when the Freedom Party has not been formed.

2. On 21 July 1998 the Refugee Review Tribunal determined to affirm the decision not to grant a protection visa.  The applicant was not satisfied with that decision and sought review from the Federal Court by way of an application dated 17 August 1998.  The grounds of that application were:

   “I am not satisfied with the refusal to seeking of my application for protection visa as I certainly believe that the primary case officer as well as the case officer of the Refugee Review Tribunal has failed to properly assess my situation in Bangladesh which I tried to establish about my fears of prosecution and possibly face life imprisonment on return.”

3. On 3 November 1998 the application came before Hely J.  As his Honour's reasons for judgment indicate the matter had previously come before his Honour on 29 October.  It had been put over until the later date because the applicant had sent in to his Honour's associate a medical certificate.  His Honour noted that a letter had been sent to the applicant informing him of the new date but on 3 November there was no appearance.  In those circumstances his Honour dismissed the matter under Order 32, rule 2 of the Federal Court rules.

4. The Federal Court rules provides that an applicant in a case which has been dismissed because of his non-appearance is entitled to seek from the court an order under Order 35, rule 7 vacating that order, but this was not done.  I do not know what then happened, but I can say that it is quite obvious that the applicant did not depart Australia because he is here before me today, albeit in immigration detention.  On 6 April 2004 from the Villawood Detention Centre the applicant made a further application, this time to this court seeking review of 21 July 1998 decision.  That application seeks orders of review and contains six grounds as follows:

   1.    I am not satisfied with RRT decision;

   2. Migration Act 1958 was not observed properly;

   3.    RRT deprived me of natural justice;

   4.    There are some significant errors of law the Tribunal made.  I will explain them in my submission;

   5.    My judicial review application is late.  I refer to plaintiff 157/2002 v Commonwealth;

   6.    I will provide more details later on.

5. No details have been provided.  No particulars have been provided and when the applicant came before me today he told me that everything that had been done on his behalf had been mismanaged.  That he had seen all the documents that had gone in on his behalf and they were all completely wrong.  That he had difficulties with his brain and as a result was unable to instruct properly his lawyers and that this was why his application was late.

6. He also told me that his brother had been killed and that his home had been destroyed.  He told me he could not make his lawyers understand him and that was why misleading things had been said on his behalf.  He felt that if he went back to Bangladesh he would be killed.  The applicant told me that he had tried twice to go back to Bangladesh but each time his family had told him that he would be killed if he returned. 

7. The applicant claimed to have a well-founded fear of persecution for the convention reason of political opinion.  He had stated that he was a founder member of the Freedom Party and that this had resulted in the persecution of both himself and his family, in particular his brother, who had been killed.  He gave evidence to the Tribunal about the dates upon which he had joined that party and the work which he had done for it.  He claimed that his house had been looted and that he and members of his family had been beaten up by the Awami League.  He claimed that he had been chased into India by the Awami League.

8. At [CB 75], the Tribunal says:

   “The Tribunal has major concerns about the credibility of the applicant which leads it to doubt the truth of his claims for the reasons below.  Even if the Tribunal was to put little weight upon the serious inconsistencies between previous statements contained in his statutory declaration of 26 May 1997 and his evidence at the hearing the applicant was most unconvincing in giving evidence at the hearing.  As a general observation, he was hesitant, vague and general in his responses to the Tribunal's questions about facts in issue.  His evidence lacked detail and specificity and at times conflicted with the independent evidence .....

   The Tribunal does not accept that the Awami League killed the applicant's brother because of his involvement in the Freedom Party.  The applicant's claims at hearing that his brother became an active member and office holder in the party in 1984/5 and that in June 1987 his brother was killed for involvement in the party seriously conflicts with the independent evidence which indicates that the Freedom Party itself was not created until August 1987.”

9. The Tribunal then considered the independent evidence and came to the conclusion that it could not be satisfied, as required under section 36, that the applicant was a person to whom Australia owed protection obligations.  The applicant has not provided me with any assistance as to how he claims that the Tribunal fell into jurisdictional error in making the findings which it made.  He has referred me to matters which are strictly speaking ones of merit.  I can do no better than quote, for the applicant's assistance, from the decision of the Full Court in NAHR v MIMIA [2004] FCAC 10 at [10]:

   “To engage in fact finding about the merits of the appellant's case is no part of the function of the court, whether at first instance or on appeal, in dealing with an application for relief under section 39B of the Judiciary Act.  As Stone J said, plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal if they are to succeed.  Whatever be the boundaries of jurisdictional error, they did not comprehend errors of fact as to the merits of the case put to the Tribunal.”

   Then at [11] – [12]:

   “It is not, as the appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on country information that is not true.  The question of the accuracy of the country information is one for the Tribunal, not for the court .....

   The very function of the Tribunal was to assess the appellant's claims, both as to their inherent credibility and as to their consistency with other information known to the Tribunal about circumstances in the appellant's country of origin.”

10. It seems to me that this quotation deals with all the possible complaints that the applicant has, save possibly what I understand to be a complaint about his previous legal advisers.  But as Dowsett J said in B41 of 2003 v MIMIA [2004] FCA 30 at [25]:

    “ In my view the prosecutor cannot complain that his actions, taken in reliance upon advice received from his immigration adviser, led to his being denied procedural fairness.”

11. I would have been quite happy to dismiss this matter as an abuse of process, given the judgment of Hely J and the failure of the applicant to take any further steps to set that aside.  However, it is probably best that I deal with the case on its merits so that the applicant cannot complain in the future that he has never had a full hearing.  For the reasons which I have set out above, I am unable to find, and the applicant has not been able to assist me in finding, any grounds upon which I can say that the Tribunal fell into jurisdictional error in the manner in which it came to its conclusions.

12. In those circumstances, I can do no more than dismiss the application and order that the applicant pay the respondent's costs which I assess in the sum of $4,500 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

13. The effect of the orders which I have made is that I uphold the notice of objection to competency filed on behalf of the respondent in these proceedings.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  28 June 2004