SZEYT and Minister For Immigration

[2004] FMCA 1069

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZEYT & MINISTER FOR IMMIGRATION [2004] FMCA 1069

MIGRATION – Refugee – objection to competency.

Migration Act 1958

Ngu vMinister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 21
Plaintiff S157 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 2

Applicant: SZEYT

Respondent: THE MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG2318 of 2004

Delivered on: 22 November 2004

Delivered at: Sydney

Hearing date: 22 November 2004

Judgment of: Nicholls FM

REPRESENTATION

Counsel for the Applicant: NIL

Solicitors for the Applicant: NIL

Counsel for the Respondent: Ms. A. Gibson

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. The substantive application filed in this Court is dismissed on the basis that the respondent Minister’s Objection to Competency is upheld. 

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's Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1385 of 2004

SZEYT

Applicant

And

THE 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 22 July 2004 seeking judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 November 2002 and handed down on 15 December 2002 to affirm the decision of the delegate of the respondent Minister made on 21 August 2000 to refuse a protection visa to the applicant.

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

   
   

   31 October 1999 and lodged an application for a protection visa with the respondent Minister’s Department on 26 November 1999, and on 3 November 1999 a delegate of the respondent Minister refused to grant the applicant a protection visa.

3. On 6 June 2000 the Tribunal set aside the decision of this delegate and substituted the decision that the protection visa application was not valid and could not be considered0 [see Court Book 47]. On 20 July 2000 the applicant lodged another application for a protection visa, and on 21 August 2000 this was refused. On 6 September 2000 the applicant applied for a review of that decision by the Tribunal. The subsequent decision by the Tribunal is the decision before the Court today. 

4. The applicant claimed that he feared that his life would be at risk from the Awami League upon his return to Bangladesh, because he is a supporter of BNP, their political opponents. 

5. In its decision of 6 June 2000 the Tribunal found the applicant's visa application lacked critical information as to why he claimed to be a refugee and failed to provide information necessary to enable the substantive issues to be decided. On this basis the application was found not to be valid.

6. The applicant subsequently re-applied for a protection visa [see CB

   
   

   1-24]. He had the assistance of a migration adviser. This application was refused by the respondent’s delegate and the applicant sought review by the Tribunal. Again he had the assistance of a migration adviser. [see CB 36] In relation to this application for review, the Tribunal wrote to the applicant on 21 August 2002, inviting the applicant to a hearing. A copy was sent to his migration adviser. The applicant was specifically put on notice that on the information available to it the Tribunal was unable to make a decision in the applicant's favour and advised that the hearing was the opportunity for the applicant to present evidence and argument in support of his claims. [see CB 39-40]. The applicant, with the involvement of his migration adviser, responded that he would attend the oral hearing. [see CB 41].  He did not do so, and gave no explanation for not attending to the Tribunal. When he did not attend the hearing, and in the absence of any explanation of the failure to attend [or any request for an adjournment] after indicating that he would attend, the Tribunal proceeded to make the decision. 

7. The applicant appeared before me today, unrepresented.  He was assisted by an interpreter in the Bengali language. I note the applicant did receive legal advice on 20 October 2004 from a solicitor on the Court’s Legal Advice Panel. 

8. Also in this matter, the respondent, on 11 August 2004, filed a Notice of Objection to Competency objecting to the jurisdiction of this Court to try this matter on that basis that s.477(1A) of the Migration Act provides that applications for review to this Court must be made within 28 days of notification of the Tribunal decision. The Tribunal decision, which is the subject of review by this Court, was made on 8 November 2002, and handed down on 5 December 2002, and the application to this Court was made on 22 July 2004, over one and a half years later. It was clearly not made within 28 days.

9. The case of Ngu v MIMIA [2004] FCAFC 21, a full Federal Court decision of 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 Migration 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]. 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, following section 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. On the issue, therefore, of whether the respondent's Notice of Objection to Competency should be upheld or not, I am required to determine whether the decision complained of is a privative clause decision.  This requires an examination of the substantive application before this Court and any substantive issues raised in the proceedings to determine whether the Tribunal's decision is affected by jurisdictional error.

11. The application to this Court relies on the following grounds:

    “1. The Tribunal made his decision on bad faith.

    2. The Tribunal to consider in the chance of my (indistinct, probably “persecution”) if I return back to previous country of residence.

    3. The Tribunal’s satisfaction that the applicant is not a refugee was not based upon remaining which provided a rational or logical foundation for this belief.

    3. I refer High Court case Plaintiff S157/2002 v Commonwealth of Australia.

    4. I will provide more later.” 

    None of this is particularised.

12. In an amended application filed in this Court on 11 October 2004, the applicant asserts the following grounds:

    “That the RRT decision was effected to take into account a relevant consideration when it assessed weather the delegate of the Minister raised reasonable grounds for not granting a protection visa.

    Particulars:

    The tribunal to consider in assessing the chance of being persecuted on my return to Bangladesh based on the fact that 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:

    I repeat the particulars to grounds.

    I WILL PROVIDE MORE PARTICULARS AFTER DISCUSS WITH PILOT SCHEME SOLICITOR MR B Slater." 

13. An additional ground of a failure to take into account a relevant consideration may be discerned here. The allegation of bad faith is not particularised, notwithstanding the serious nature of this assertion. It is well settled that an allegation of bad faith involving personal fault on the part of the decision maker must be justified on the relevant material. Other than mere assertion there is nothing before me to show bad faith on the part of the Tribunal, or, for that matter, actual or apprehended bias. This ground must fail.

14. In relation to the claim that there was no rational or logical foundation for the Tribunal's finding, the Tribunal was not satisfied that the applicant's claims as presented would amount to a well founded fear on Refugee Convention grounds. Before me today the applicant was unable to show any flaw in the Tribunal's reasons. Nor is there any evident lack in the Tribunal's process of reasoning in the material presented before me. It is not necessary therefore to consider further whether want of logic could amount to jurisdictional error. I accept the respondent's submission that the Tribunal's lack of satisfaction as to the applicant’s claims does not amount to illogical reasoning or want of logic. 

15. The remainder of the applicants’ claims to the extent that any specificity can be discerned allege a failure to take into account a relevant consideration and generally a dissatisfaction with the Tribunal's decision. In the applicant's “second” application to the respondent’s Department in July 2000 he provided some briefly set out claims – [see CB 1-24] – but provided no detail or elaboration.  Further, in the applicant's review application to the Tribunal, the applicant provided no further submissions or information, and in spite of making reference to "my next submission", nothing additional was submitted.

16. The Tribunal's decision turned on the fact that the applicant had not provided evidence or indeed details of his claim, and that based on the limited information provided, and in all the relevant circumstances, and being mindful of the fact that the applicant had been given the opportunity to attend a hearing, the Tribunal affirmed the delegates decision to refuse a protection visa to the applicant.

17. The applicant's claims, to the limited extent put by the applicant, were considered by the Tribunal.  The applicant has brought no evidence to the contrary before me today. The applicant would have been on notice following his first application of the need to provide details to support his refugee claim. He had the assistance of a migration adviser. In any event the Tribunal’s letter of 21 August 2002 clearly put him on notice that the Tribunal was unable to make a favourable decision on what had been put before it. He was invited to an oral hearing, indicated he would attend, but without explanation did not do so. In all these circumstances that Tribunal was entitled to proceed to make a decision [s.426 A (1) of the Act]. It was the lack of detail [CB 53] on the part of the applicant’s claims that led to the Tribunal’s adverse findings. I can see no failure to take into account material. The applicant has been unable to show any error on the part of the Tribunal, let alone jurisdictional error in what the Tribunal did.

18. Before me today the applicant also claimed that he had been misled by his migration agent.  He claimed that the agent had told him that it was not necessary to attend the hearing before the Tribunal. The applicant, however, has been unable to provide any evidence of this, nor any misconduct on the part of the agent.  When I asked the applicant if he made any complaint to the Tribunal at the time of receiving the adverse decision from the Tribunal, he stated that he had not made any complaint. The applicant’s statement today is difficult to reconcile with the advice endorsed by his agent [see CB 41] that he would attend the hearing, and with the Tribunal’s letter of 21 August 2002 [see CB 39-40] putting him on notice of the importance of the hearing.

19. In the Tribunal was not aware of any problem or alleged problem in relation to the alleged difficulties with the migration agent and the Tribunal had before it material that showed that the applicant was on notice that it would make an unfavourable decision and that he should attend an oral interview to support his claims. 

20. I further note that since the date of the making of that decision, on 8 November 2002, and notification of that decision to the applicant on 5 December 2002, to the address that the applicant had provided to the Tribunal with a copy to his migration agent at the time, the applicant has waited, well over a year and a half later, before raising his claims against his migration agent. 

21. In any event, in the circumstances that I have already outlined, that is that the Tribunal was not made aware of any problem or alleged problem, on the basis that notice had been given to the applicant, on the basis that the applicant had indicated that he would attend the Tribunal hearing, and subsequently did not attend, there is no error or jurisdictional error in those circumstances on the part of the Tribunal, nor has the applicant provided any evidence to show any such error or jurisdictional error.

22. On this basis this is a privative clause decision, and as the substantive application to the Court was lodged well outside the time limit, pursuant to s.477 of the Migration Act, this Court has no jurisdiction to try this application. Accordingly, the respondent's objection to competency must be upheld and the substantive application made to the Court is dismissed.

RECORDED : NOT TRANSCRIBED

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Wagma Aziza

Date:  2 February 2005