SZDPV v Minister for Immigration

[2004] FMCA 1067

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDPV v MINISTER FOR IMMIGRATION [2004] FMCA 1067

MIGRATION – Refugee – Migration Act – section 477.

Migration Act 1958

Ngu v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21
Plaintiff S157v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 2
Muin v RRT & Ors and Lie v RRT & Ors [2002] HCA 30
VWST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 286

Applicant: SZDPV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG1519 of 2004

Delivered on: 7 December 2004

Delivered at: Sydney

Hearing date: 7 December 2004

Judgment of: Nicholls FM

REPRESENTATION

Counsel for the Respondent: Mr. Allatt

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The application is dismissed

2. The applicant pay the respondent's costs set in the amount of $3000 pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1519 of 2004

SZDPV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

1. This judgment arises from an application filed in this Court by the applicant on 21 May 2004 seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 15 October 1998, and notified to the applicant by letter dated the same day, to affirm the decision of a delegate of the respondent Minister to refuse a protection visa [as described by the Tribunal] to the applicant made on 8 January 1992.  On 9 August 1993 the applicant sought review of that decision by the Tribunal. 

2. On 24 June 1996 the Tribunal, differently constituted, had previously decided that the application for review was lodged out of the prescribed statutory time limit and that therefore it had no jurisdiction to hear the substantive issue. On 1 June 1998 the Federal Court set aside this decision and remitted the matter to the Tribunal to be heard and determined according to law.  His Honour Justice Einfeld concluded that the Tribunal erred in law by finding that it had no jurisdiction.

3. The applicant is a citizen of Bangladesh. He arrived in Australia on

   
   

   30 July 1989 and lodged an “Application For Refugee Status in Australia” with the respondent’s Department on 17 January 1991. [The relevant effect of s.39 of the Migration Reform Act 1992 is that an application for a determination that a person is a refugee made before 1 September 1994, is to apply after that date as if the application was an application for a protection visa.] The applicant claimed a fear of persecution on the ground of political opinion.

4. The applicant has now come to this Court by way of application made on 21 May 2004 complaining of a Tribunal decision notified to him on 15 October 1998, and sets out six grounds in that application. The grounds are for the most part generic and are not particularised. I note that the applicant has not filed any other material in support of his application.

5. The applicant signed Short Minutes of Orders on 27 August 2004 being the first Court date in this matter, the terms of which subsequently became orders of this Court.  Order (2) required the applicant to file and serve an amended application setting out in full particularised grounds relied upon together with any affidavit material to be relied upon on or before 4 November 2004. By order (4) made at the same time the applicant was also required to file and serve written legal submissions seven days prior to the hearing date.  Neither order has been complied with, and in this regard I also note that the applicant was referred to a Panel Legal Adviser pursuant to the Court’s Legal Advice Scheme and that the applicant confirmed that he had consulted the Panel Lawyer on 26 October 2004 and was given advice on 4 November 2004.

6. At the hearing before me today the applicant appeared unrepresented and while he indicated to me that he was comfortable in proceeding in English, in parts of the hearing before me today he was assisted by an interpreter in the Bengali language. 

7. Also at the hearing before me today the applicant at first advised that he had received advice by way of letter from the Panel’s Lawyer and that he had been told by the Panel Legal Adviser that a letter supporting his claim had been sent to the Australian Government Solicitor.  The applicant did not produce a copy of the letter to the Australian Government Solicitor and nor was Mr Allatt for the respondent Minister able to advise that any such letter had been received.  The applicant subsequently said that he had nothing further that he wished to rely on by way of written material.

8. The respondent’s Counsel has submitted that the Tribunal's findings were open to it to make for the reasons that it gives, and the application before this Court does not disclose any jurisdictional error on the part of the Tribunal. Therefore the Tribunal's decision is a privative clause decision as defined in s.474(2) of the Migration Act, and that s.477(1A) of the Migration Act applies in these proceedings. As the application to this Court was made well outside the statutory time limit of 28 days, the application should be dismissed. The application was made some five and a half years after the notification of the Tribunal decision.

9. The case of Ngu v MIMIA [2004] FCAFC 21, a Full Federal Court decision on 4 November 2004 upheld the judgment of Justice Nicholson, who at first instance held that an appeal against a privative clause decision lodged outside the time limits in s.477 of the Act is incompetent if a ground of review cannot be made out [with reference to the High Court’s judgment in Plaintiff S157 v MIMIA [2003] HCA 2.] So if the Tribunal's decision in the case before me is a privative clause decision pursuant to s.474 of the Act, then the time limit under s.477(1A) would apply. Also pursuant to s.477(2) of the Act, the Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit.

10. The relevant issue therefore for me to consider is whether the decision complained of is a privative clause decision or not. Turning to the grounds raised in the application to this Court.  As I noted earlier the grounds are not particularised, and in parts appear to be nothing more than mere assertions, but to the extent that anything can be discerned from these grounds, the applicant complains of a failure to accord procedural fairness both within the statutory context of s.424A(1) and s 418(3) of the Act, and common law principles of natural justice [Grounds 1, 2 and 3].

11. Some clarification is necessary here. Firstly, s.424A came into effect on 1 June 1999 and as such does not apply to a decision made prior to that date. Secondly, s.418(3) provides for the Secretary [of the Department of Immigration] to give certain documents to the Tribunal that are relevant to the review before the Tribunal. By linking s.418(3) to s.424A(1), it may be that applicant is really referring to s.424(1) [not s.424A(1)] and thereby seeking to assert a breach of procedural fairness as considered by the High Court in the cases of Muin v RRT & Ors and Lie v RRT & Ors [2002] HCA 30.

12. The circumstances of this case can be distinguished from Muin & Lie in that there is nothing in the material before me to show that the applicant was misled by any misrepresentations by the Tribunal in relation to the information that it had before it, there are no agreed facts as there existed in the cases before the High Court and this was not a “review on the papers”. Nor is there anything before me to show that the applicant in this case was denied the opportunity to respond to specific material which was adverse to his case, as was the situation with Mr. Muin.

13. Grounds 4 and 5, again, are not particularised and nor has the applicant in the hearing before me today put forward anything to warrant consideration of any matters that could be inferred from what he has put in his written application. Ground 4 could be read as asserting that there was no rational foundation for the Tribunal’s findings. There is authority, [VWST v MIMIA [2004] FCAFC 286] that it should not be conceded that jurisdictional error can be made out by mere illogicality. Whatever the situation, there was no illogical or unreasonable element in what the Tribunal did in this case.

14. Ground 6 asserts that the Tribunal fell into error in assessing whether or not the State was able to offer adequate protection to the applicant if he returned and that it did not deal with this matter.  I note that it was not necessary for the Tribunal to consider the issue of adequate State protection because the Tribunal had found (Court Book 101.6) that none of the applicant's claims gave:

    “rise to a claim to refugee status under the 1951 UN Convention relating to the Status of Refugees.” 

    Having made findings that the applicant did not have a well founded fear for a Convention reason in those circumstances it was not necessary for the Tribunal to consider the issue of adequate State protection.

15. It is clear from its decision record that the Tribunal based its findings on the claims that the applicant submitted and in particular made findings of fact including findings as to credibility, which was the role for the primary decision maker “par excellence”. In particular the adverse findings on which the Tribunal based its decision included:

    -a finding at CB 98.1 that the Tribunal did not accept as authentic a document which the applicant produced to the Tribunal at the hearing. The document asserted that the applicant was a member of the executive committee of the Jatiyo Party. It was dated 16 December 1993. The Tribunal found it was difficult to reconcile this with the fact that the applicant had been in Australia since 1989. The Tribunal also records that it was only able to inspect the document briefly as the applicant said that he wanted to keep it. 

    -at CB 101.5 the Tribunal did not accept purported documentary evidence that he was a member of the executive committee of the national party, being the Jatiyo Party

    -At CB 99.9 and over the page, the Tribunal made a finding that the applicant left Bangladesh in 1979 not because he was being persecuted but because “finally he had a job”. This was based on the applicant’s advice that he had been recruited to work in Saudi Arabia.

    -at CB 100.5 the Tribunal found that it could not accept his evidence about the issue of a warrant for his arrest and noted that no documentary evidence had been produced since the allegation was first made in 1991. 

    -at CB 101.6 the Tribunal found that a suggestion made by the applicant that people whom he helped in 1974 would flock to his door in Dakar upon his return in late 1998 was unrealistic. 

16. The applicant was unsuccessful, as I have said, because of the view that the Tribunal took of the facts. The applicant was given the opportunity to attend a hearing, and attended that hearing. The Tribunal was entitled to make the findings, including findings of credibility, that it did and it gave reasons for these findings. In this regard I note that to the extent that the Tribunal relied on independent country information there is nothing before me to show that the Tribunal failed to afford either statutory [to the extent that it applied] or common law procedural fairness to the applicant.

17. At the hearing before me today the applicant attempted to provide the Court with information relating to variously, a deportation issue in which he says he was involved, for the “bad situation” that the applicant says exists in his country, and the “bad situation” that he has faced during his time in Australia.  He put to me that he has endured pain and suffering and as I attempted to explain to the applicant that the matter before the Court today, the relevant matter, was the Tribunal's decision made in 1998, and as I put simply to the applicant, whether the Tribunal had done its job properly, and whether there were any errors or legal errors in relation to what the Tribunal had done.  In this regard the applicant was only able to put one additional matter, namely, that the Tribunal did not listen to him. In this regard there is nothing before me to show that the Tribunal disregarded any relevant matters put to it. I can understand that the applicant is aggrieved by the Tribunal's decision and that he does not agree with it, but this does not amount to evidence that the Tribunal did not consider relevant matters.

18. One particular further matter that the applicant referred to at the hearing before me was the matter of “family letters” that he claimed he submitted to the Tribunal. Family letters that go to the issue of the treatment that he says he received in Bangladesh.  He claims that the Tribunal did not refer to these letters and said that the letters were not mentioned in the Court Book. However, this is factually incorrect. At CB 98.8 the Tribunal says:

    “In his submission of 1991 the applicant said that he had letters from his family in Bangladesh detailing instances of harassment, which he intended having translated for the purposes of his application for a protection visa. However at the hearing he did not produce any such evidence stating that his letters contained material that was private.”

    It is clear that the Tribunal did consider the issue of these letters and that there is a discrepancy between the Tribunal's record and the applicant's claim before me today on whether the applicant produced these letter to the Tribunal.

19. The applicant invited me to listen to a tape of the Tribunal hearing but has not produced any tape before me today, nor any transcript of proceedings.  Mr Allatt, for the respondent Minister, has submitted to me that a tape of the Tribunal's hearing was provided to the applicant's Legal Panel Adviser and that therefore there would have been the opportunity for the applicant either on his own initiative, or by way of the Panel Adviser, to have produced any such evidence to this Court today.  No such evidence has been provided. Given that the applicant had both the benefit of legal advice and the opportunity to produce the tape and did not, I am not required to take this matter any further in these circumstances. 

20. In all, the applicant has been unable to show any error on the part of the Tribunal, let alone jurisdictional error. Nor can I see on the material before me any error on the part of the Tribunal. On this basis, this is a privative clause decision and as the application to the Court was lodged well outside the time limits contained in the legislation, and in the absence of any, as I have said, substantive merit in the applicant's application, the application is dismissed.   

    RECORDED  :  NOT TRANSCRIBED

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Wagma Aziza

Date:  25 January 2005