SZEAC v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1746

FEDERAL COURT OF AUSTRALIA

SZEAC v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1746

SZEAC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 1697 OF 2005

MADGWICK J
23 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1697 OF 2005

BETWEEN:

SZEAC
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MADGWICK J

DATE OF ORDER:

23 NOVEMBER 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal must be dismissed with costs, assessed in the sum of $3,600.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1697 OF 2005

BETWEEN:

SZEAC
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	23 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. This is an appeal against a decision of the Federal Magistrates Court constituted by Federal Magistrate Emmett.  Her Honour dismissed an application by the appellant for judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’), the second respondent.  The Tribunal's decision had in turn affirmed a decision of a delegate of the respondent Minister not to grant a protection visa to the appellant.

2. The appellant is a national of Bangladesh.  His case was that he feared persecution in that country for reasons of political opinion arising from his activities, allegedly as a prominent member of the Jatiya Party.  He claimed to fear persecution from persons associated with other political parties, namely the Bangladeshi National Party and the Awami League. He had left Bangladesh in 1997 and resided in South Africa until he came to Australia in January 2004.  He claimed to fear persecution from the local black community in South Africa for reasons which are pretty much unexplained.

3. The central matter agitated in the Court below was a supposed denial of procedural fairness by the Tribunal.  The Tribunal scheduled the hearing for 26 May 2004. The appellant was advised of this by a letter dated 19 April 2004.  He was also told that on the material the

   
   
   

   Tribunal presently had before it, the Tribunal would not be able to make a decision in his favour.  Among other things, he was told:

   ‘The Tribunal only changes its hearing dates for good reasons.  If you think you might be unable to attend the hearing you must contact the Tribunal immediately.  If you do not attend the hearing and the Tribunal does not postpone the hearing it can make a decision on your case without further notice.’

4. He was told further that he could send in any new documents or written arguments that he wanted the Tribunal to consider. 

5. The appellant responded to that invitation by advising the Tribunal that he did wish to come and that he would need a Bengali interpreter, however, he did not appear, and neither on 26 May, nor before, nor after it, did he explain to the Tribunal why he had not attended or would not attend. Having not heard further from the appellant when he did not appear, the Tribunal exercised its discretion pursuant to section 426A of the Migration Act1958 (Cth) to proceed to determine the appellant's case without taking any further action.

6. The Tribunal Member was impressed adversely by the lack of detail of the appellant's alleged activities that might have warranted or caused his persecution both in Bangladesh and South Africa, and did not accept any of his claims about his relevant history in Bangladesh, nor was it satisfied that he held any well founded fear of persecution in Bangladesh or South Africa for any Convention reason.

7. The appellant’s case before the Court below was that he had been ill and unable to attend the hearing.  He apparently gave no acceptable explanation as to why he had not contacted the Tribunal to seek an adjournment, nor as to why he did not provide any evidence to the Tribunal of his alleged illness.  The learned Federal Magistrate held that there was no denial to the appellant of procedural fairness. 

8. Other grounds arose before her Honour which were manifestly without substance and require no further comment. 

9. The appellant’s amended notice of appeal, insofar as is either comprehensible or could possibly relate to this case, suggests that the substantial matter complained of continues to be the failure of the Tribunal to adjourn his case.  Counsel for the respondent, with a degree of restraint which verges on the heroic, submitted of the amended notice of appeal: ‘Several of these grounds make generic complaints which bear no relationship to the Tribunal’s reasons’.  The amended notice of appeal is in fact a disgrace.  If the appellant paid money for somebody with a dangerously small knowledge of the law (which the document suggests) to prepare it.  One might perhaps hope that he can recover his money.  Then again, in all of the circumstances, one might not. 

10. There is no error shown in the approach of her Honour to this case.  There was no denial of procedural fairness to the appellant by the Tribunal.  He had every opportunity to present his case.  He very belatedly offers the flimsiest of explanations as to why he did not act as any moderately intelligent adult would have acted to arrange to take advantage of the offer of a hearing which the Tribunal had, in accordance with its duty, offered to him.

11. The appeal must be dismissed with costs, assessed in the sum of $3,600.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             7 December 2005

Solicitor for the Applicant:	The appellant appeared in person
Counsel for the Respondent:	Mr Dean Jordan
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	23 November 2005
Date of Judgment:	23 November 2005