SZESA v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 430

FEDERAL COURT OF AUSTRALIA

SZESA v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 430

MIGRATION – no special or particular principle arising – abuse of process of the appellate procedure

Coulton v Holcombe (1986) 162 CLR 1

SZESA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2391 OF 2005

CONTI J
20 APRIL 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2391 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZESA
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

20 APRIL 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant to pay the Minister’s costs of the appeal.

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 2391 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZESA
APPELLANT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	CONTI J
DATE:	20 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of Emmett FM given on 21 November 2005 whereby her Honour dismissed the appellant’s application for review of the Refugee Review Tribunal’s decision made on 13 October 2004 affirming the decision of the Minister’s delegate earlier given on 15 March 2004 not to grant the appellant a protection visa.

2. The appellant, a citizen of Bangladesh, arrived in Australia on 7 November 2003, and on 18 December 2003 made application to the then Department of Immigration and Multicultural and Indigenous Affairs for a protection visa.  That application was refused on 18 February 2004.  On or about 15 March 2004, the appellant made application for review of the delegate’s decision.  Ultimately that application was refused by the Tribunal on 13 October 2004.  On 15 November 2004, an application for review of the Tribunal’s decision was filed in the Federal Magistrates Court, being an application which was followed by an amended application filed on 15 June 2004.

3. The appellant’s claims made to the Tribunal included the following:

   (i)he was born in 1977 and lived in Feni in Bangladesh, where he received a total of 14 years of education; from 2000 to November 2003 he lived in the United Arab Emirates, and claimed to have owned an export-import company from 1998 to 2000, and an electrical and sanitary goods outlet after 2000;

   (ii)after he arrived in the United Arab Emirates, he fell in love with a Christian woman. He claimed that when this was seen by Muslim people, they targeted and threatened him forcing him to leave under the threat of death.

   (iii) upon returning to Bangladesh, he was persecuted on account of his conversion to Christianity; he kept that circumstance as secret as possible; nevertheless his life was threatened, and he was kidnapped and tortured on account of his Christian adherence; he also claimed that the present Bangladesh government was controlled by a fundamentalist Muslim political party, which did not protect the lives and assets of religious minorities;

   (iv)he was a member of the Awami League and would be persecuted for his involvement in its activities.

4. The amended application for judicial review in the Federal Magistrates Court was predicated on two grounds of appeal, the pursuit of which resulted as follows:

   (i)the Tribunal ignored evidence that there had been a church located adjacent to his home in Bangladesh that he visited regularly, and moreover that he attended a Christian church in Sydney; in the Federal Magistrates Court, however, he conceded that the Tribunal had in fact referred to that proffered evidence;

   (ii)the appellant was medically unfit to testify at the Tribunal hearing; however he conceded that he had not requested an adjournment of the Tribunal hearing, and that there was no evidentiary basis in any event for the allegation that the appellant was mentally unfit to testify at the Tribunal hearing.

5. Six grounds of appeal, albeit incorrectly numbered as appears below, were thereafter presented to the Federal Court from the judgment of Emmett FM, as follows:

   ‘1.That His Honour erred in failing to find Section 424A(3) of the Migration Act is ultra vires the Australian Constitution;

   2.That His Honour erred in failing to hold that Section 61 of the Australia Constitution imposes on the Respondent an inexcludable requirement of due Process including procedural fairness.

   3.That His Honour erred in failing to hold that Section 424A(3)(a) of the Migration Act is in breach of such requirement of due process and therefore ultra vires section 61 of the Australian Constitution.

   4.That consequent upon the foregoing, His Honour erred in failing to hold that the Following information amounted to a breach of such constitutionally guaranteed right of due process, or in the alternative constituted procedural unfairness amounting to jurisdictional error.

   a.That the Second Respondent had regard to selected “Independent Country Information” in relation to Bangladesh in circumstances where country files was entirety held by the Respondent and available to the Tribunal, were not available to the Applicant.

   b.That the Second Respondent failed to consider all relevant materials, including Independent Country Information which was its possession (but not available to the Applicant) as to the persecution of Islamic Fatowa in Bangladesh. In particular but without limiting the generality of the foregoing the Tribunal failed to consider the following documents:

   (i)Document number CB pages 43-49 Human Right Congress for Bangladesh Minorities.

   (ii)Document number CB page 50, The Daily Star HR group terms it premeditated.

   (iii)Document number CB page 51 The Daily Star Ahmadias under attack.

   (iv)Document number CB page 52 The Daily Star, Barbarism in Banchkhali

   (v)Document number CB 53 the Daily Star No move to arrest attackers instigators.

   6.That His Honour erred in failing to hold that a reasonable person might apprehend that the Second Respondent in determining issues before it, including the issue of whether or not the Applicant was a converted Christian was biased against the Applicant

   7.That His Honour erred in failing to hold that Section 424A(3) of the Migration Act. That His Honour erred in failing to find that the Applicant was apostate and liable to severe physical punishment guided by the Islamic Shari -a- Law (Fatwa).’

6. None of those grounds raised issues properly or permissibly presented by the appellant to the Federal Magistrates Court for resolution; as the Minister rightly pointed out, there can be no error on the part of the Federal Magistrate in relation to a matter not raised in proceedings below, and in particular in the Federal Magistrates Court.  In the circumstances therefore, and in the light of the Minister’s objection to the appellant raising new issues on the appeal, each of the issues purportedly so raised must be rejected as matters validly falling for resolution.

7. Counsel for the Minister acknowledged that in some circumstances in migration cases, the rule in Coulton v Holcombe (1986) 162 CLR 1 at 7–8 may be relaxed or modified in order to accommodate natural justice requirements which are said to arise in such cases, but that there was nothing of an exceptional or unique situation involved in the proceedings below, in particular since the appellant was there represented by experienced counsel, and had then the opportunity to make any of the points he has sought to ventilate in the present appellate context. In those circumstances, so the Minister further contended, the appellant was bound by the case which he ran below. There is clear substance in that submission.

8. In any event, counsel for the Minister submitted with justification, that the matters raised by the present notice of appeal were at best formulaic, as well as being without merit, especially when considered against the Tribunal’s reasons for decision. Thus the suggestion in grounds 1 to 3 and 7 of the notice of appeal that s 424A of the Migration Act 1958 (Cth) was constitutionally invalid, as the Minister submitted, is without merit, the section having been construed on numerous occasions by the Federal Court, and also by the High Court, without any suggestion of, much more authority for, the proposition that the same is invalid, or otherwise violates any limitation or constraint evident in the Constitution. Moreover, as the Minister further pointed out, the fourth ground contained an amalgam of supposed grounds of jurisdictional error, none of which has any basis in fact or in law, whilst the ground identified as the sixth ground (being in fact the fifth ground) alleged bias on the part of the Tribunal without any purported or proffered basis in substance.

9. In the result, no jurisdictional error was isolated by the appellant in the Tribunal’s decision, or in the reasons for judgment of Emmett FM.

10. At the hearing of the appeal, the appellant was unrepresented.  He did not attempt orally to articulate anything of substance in support of the appeal, nor when invited to do so did he add anything in support of the grounds of appeal, or otherwise.  All that he asserted by way of purported testimony in chief was that ‘I am away from country for six years’, and ‘if you want I can bring some more documents, but I need time for that’.  When invited so to do, he declined to add anything in reply.

11. What however the applicant did file in advance to the Court was a so-called ‘Written Argument in supporting of the Applicant’s Case’ consisting of four pages, which had not been provided at any time to the Minister or her legal representatives.  I adjourned the hearing for a short time to enable the Minister’s counsel to read the same.  The document bore the date 20 March 2006.

12. The author of the document appeared to have some content of familiarity with migration law.  The matters or subjects purportedly addressed by the document was substantially as follows (adopting the literal expressions used on many occasions):

    (i)circumstances of persecution which attended his conversion to Christianity, which led to his fleeing to Dubai;

    (ii)the Tribunal’s non-acceptance of ‘documentary evidence’ which he provided to the Tribunal;

    (iii)the Tribunal’s consideration of independent country information, contrary to the general law of migration;

    (iv)the Tribunal’s ‘dependency’ on country information used by asylum seekers in the United States;

    (v)the non-provision by the Tribunal to him of the country information;

    (vi)the absence of evidence or materials to justify the Tribunal’s decision; other complaints of a broad and general nature were the Tribunal’s ‘complicated and inter-twisted’ questions, and the provision by the Tribunal of an unsuitable interpreter; the Tribunal’s failure to consider ‘my plea’ that ‘I was mentally unfit to give the all answer (sic) to the Tribunal ..’;

    (vii)the s 91R(1) provisions of the Act to the effect that ‘serious harm’ includes ‘for example a threat of life or liberty’;

    (viii)in breach of the Convention, ‘... the BNP Activists did not tolerate my die hard involvement with the [Awami League] ...’;

    (ix)‘[f]inally the Tribunal decision of relevant evidences and its finding amongst to controlling independent evidence which constitute a jurisdictional error being a breach of procedural fairness ..’, reference being made to s 39B of the Judiciary Act 1903 (Cth) and Abebe v Commonwealth (1999) 162 ALR 1 at [113]; ‘[t]hus it is subject to the operation of discrimination factors, breach of procedural fairness, jurisdictional error and error of law’;

    (x)‘ ... the ingredient of persecution against me have the both elements of subjective and objective fear, but the Tribunal failed to identify those elements ...’

13. Counsel for the Minister submitted that this document raised ‘entirely new issues’ to those appearing in the notice of appeal, and moreover that the Tribunal’s reasons had already dealt with the subject of country information relevantly to what was sought purportedly to be raised and found against the appellant’s contention that he was confused and not in a state to give proper evidence; moreover the Tribunal also found against the applicant’s claims as to intellectual impairment.

14. Counsel for the Minister further submitted that the written submissions were in any event directed essentially to the merits of the Tribunal’s decision, and provided no substance to the claims of denial of procedure fairness.  Moreover she submitted that the truth and reality was that the Tribunal did not believe that the appellant had the subjective fear which he claimed; and that much of the submissions comprised simply formulaic expressions of legal propositions which did not address the facts found by the Tribunal; much of what was submitted in the written material constituted merely a re-agitation of the merits of the Tribunal’s decision.

15. The Minister’s response was plainly correct.  Even if the appellant should be allowed to tender these submissions in support of the appeal without notice to the Minister, the reality is that they constituted a purported rehearing of misconceived errors, including errors of law, which exposed no error in the reasons for decision of the Federal Magistrate’s Court below.

16. What the appellant sought to do in reality was an attempt to burden the Court and the Minister with a farrago of misconceptions, wrongful quotations and a fresh hearing of the merits of a case for review of the Tribunal’s decision without any basis on the merits, and to ignore the reasons for decision of Emmett FM notwithstanding his purported appeal from her judgment and orders.  Even if the appellant’s submissions had borne any appearance of merit according to law, they were submission that fell to be disposed of by the Federal Magistrates Court below, and to attempt to agitate the same on appeal to the Federal Court, without even prior notice to the Minister, amounted in reality to an abuse of process.

17. The appeal must be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:            20 April 2006

The Appellant appeared in person
Counsel for the First Respondent:	L Clegg
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	30 March 2006
Date of Judgment:	18 April 2006