SZEZI v Minister for Immigration
[2004] FMCA 882
•9 November 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEZI v MINISTER FOR IMMIGRATION | [2004] FMCA 882 |
| MIGRATION – Review of decision of Refugee Review Tribunal – procedural fairness – no jurisdictional error – privative clause decision – application out of time – application dismissed as incompetent. Migration Act 1958 (Cth) Muin v Refugee Review Tribunal (2002) 190 ALR 601 |
| Applicant: | SZEZI |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SYG2365 of 2004 |
| Delivered on: | 9 November 2004 |
| Delivered at: | Sydney |
| Hearing date: | 9 November 2004 |
| Judgment of: | Mowbray FM |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Michael Wigney |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The application be dismissed.
The applicant pay the Minister's costs and disbursements of and incidental to the application fixed in the sum of $4,300.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG2365 of 2004
| SZEZI |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIEGNOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an ex tempore judgment which has been revised and edited from the transcript of the hearing. It relates to a decision of the Refugee Review Tribunal (the Tribunal) made and handed down on
7 March 2000.The applicant arrived in Australia on a visitor’s visa on 15 May 1998 and on 24 June 1998 he applied for a protection visa. This application was refused on 26 October 1998 and on 16 November 1998 he applied to the Tribunal for review of the primary decision. The Tribunal affirmed the primary decision on 7 March 2000. On 27 July 2004 the applicant applied to this Court.
The claims before the Department and the Tribunal
The applicant is a citizen of Bangladesh. He claims that he fears persecution on the basis of his homosexuality. As a result of family and societal pressure in Bangladesh for him to marry he claims he went to Saudi Arabia to work. When he returned on one occasion his boyfriend came with him and their relationship was discovered. They were “arbitrated” by the local union council and the Mosque committee. His father then cut off contact from him and he was eventually forced to leave the country.
The applicant claims that he fears he will be persecuted by Muslim fundamentalists and that Bangladeshi authorities will discriminate against him.
The Tribunal decision
Details of the Tribunal's proceedings and reasons for decision are set out at paragraphs 2 and 3 of the respondent’s submissions:
2.1On 16 November 1998, the applicant applied to the Tribunal for a review of the delegate's decision. While the application made reference to an accompanying submission, not [sic] such submission was received by the Tribunal.
2.2The applicant was invited to attend a hearing before the Tribunal by letter from the Tribunal dated 21 December 1999. He initially responded to the invitation by indicating that he would attend the hearing, however on the day before the hearing the applicant's migration adviser wrote to the Tribunal and advised that the applicant had advised in writing that he did not want to attend the hearing. The applicant's decision not to attend the hearing was made in the face of advice, both oral and in writing, that the Tribunal was unable to make a favourable decision on the basis of the limited information the applicant had provided. Following the advice from the applicant's migration adviser, the Tribunal proceeded to determine the application on the papers as it was entitled to do.
2.3On 7 March 2000 the Tribunal handed down its decision affirming the decision of the delegate refusing the applicant's visa application.
The Tribunal's decision and reasons
3.1The basis of the Tribunal's decision to affirm the delegate's refusal of the applicant's visa was that (as had been foreshadowed to him) the Tribunal was of the view that the applicant had not provided sufficient information in support of his claims to satisfy the Tribunal of facts that would enable the Tribunal to be satisfied that he had a well founded fear of persecution in Bangladesh. Because the applicant had declined to appear at a hearing to answer questions and supplement his evidence, the Tribunal had not been able to satisfy itself of critical aspects of the applicant's factual claims.
3.2 The Tribunal concluded that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention and that therefore he did not satisfy the criterion set out in s 36(2) of the Act for a protection visa.
Pages 73 and 74 of the Court Book set out the details which the Tribunal felt were necessary if it were to satisfactorily establish the relevant facts in the case. The Tribunal made it clear that a range of questions remained unanswered.
The applicant's case
The applicant filed an amended application on 3 November 2004 setting out nine grounds for review. I will not spell out in detail here those grounds other than to note that only ground one contains any particulars although ground two says it repeats the particulars from ground one. Grounds three to nine are not particularised.
The Court has before it also a document headed “Written Argument by applicant” dated 4 November 2004 which adds very little to the amended application.
Consideration
Ground one in the application claims that there was a denial of procedural fairness. The first particular relates to the applicant’s failure to attend the Tribunal hearing. It is unclear in what way the applicant believes he was unfairly treated. The particular does mention that a letter that he had allegedly written to his migration agent was not included in the Court Book. However, it is apparent from the documents in the Court Book that the applicant initially indicated that he wished to attend the hearing and that later his authorised migration agent, Mr Boni Amin, notified the Tribunal that he had been instructed by the applicant that the applicant did not wish to attend the hearing set for 16 February 2000.
I can discern no reviewable error in respect of this matter. Section 426A allows the Tribunal to proceed to make a decision in these circumstances.
The second way in which the applicant asserts that the Tribunal failed to accord him procedural fairness is that the Tribunal failed to provide him with an opportunity to deal with adverse information contained in the independent country information. This ground misunderstands the basis on which the Tribunal decision was made. The Tribunal's decision did not depend in any way on country information or any other adverse information that was required to be brought to the applicant’s attention. As is clear from the decision at pages 73 and 74 of the Court Book, the Tribunal’s reasons were related to the insufficiency of the evidence placed before it by the applicant. It was not based on any adverse information which in other circumstances the Tribunal might have been required to provide to the applicant.
The third procedural fairness ground refers to the Muin and Lie class action (see Muin v Refugee Review Tribunal (2002) 190 ALR 601) and asserts that this case is very much identical.
The difficulty the applicant has with this submission is that there has been no evidentiary foundation laid for reliance on the Muin decision. In NADR v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 124 FCR 465 Kiefel J (whose views were adopted by the other members of the Court) said:
24. Muin does not establish, as the submissions for the appellant implied, that the effect of sending a letter in those terms will amount to a denial of procedural fairness in circumstances where the Tribunal has not referred to the Part B documents in its later decision. Rather it holds there is a want of procedural fairness where an applicant before a Tribunal is misled into thinking that the Tribunal has considered particular relevant information and, as a result, did not ensure that such information was placed before it. Whether it is necessary to infer that the Tribunal was not likely to have considered the material, or whether it is sufficient that it may not have done so, is perhaps moot. It is also of importance that a conclusion that the plaintiff was misled was rendered possible largely because of agreed facts.
25. At a factual level the present case differs substantially from Muin. It is not agreed that the documents were not physically provided to the Tribunal. It is not agreed that the appellant was misled by the letter, or that he would have taken any particular steps had he been told, if it was the case, that the Tribunal had not been provided with them. It was submitted that the Part B documents can be seen to relate to the appellant's case. So much can be expected. Beyond that the appellant sought to utilise the findings of fact in Muin to make out his case. Needless to say, that is not a course which is open. Each case must be considered on its own facts.
The case before me is similar in those respects to NADR. No evidentiary foundation has been laid for seeking to rely on the Muin decision.
Under the heading of procedural fairness the applicant has also said that he seeks to rely on the decision in NARV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 203 ALR 494. He has not been able to expand on this.
The applicant’s procedural fairness claims must be rejected.
The second ground relates to s.424A of the Act and suggests the applicant was not provided with independent country information. There are two points to make in relation to this ground. Firstly the ground claimed is not properly particularised and secondly the Tribunal did not rely on independent country information when reaching its decision.
Ground three claims that procedures required under the Act were not observed and ground four that the Tribunal ignored the merits of the claim. Ground five is that the Tribunal failed to take into account relevant considerations. Ground six states that the Tribunal incorrectly interpreted the applicable law. Ground seven is that the Tribunal decision was unjust. Ground eight claims that the Tribunal decision was not justified by the evidence used in the decision, ground nine the decision was an improper exercise of the power. These grounds are broad, generalised and not particularised. They represent no more than mere assertions. I gave the applicant every opportunity at the hearing to flesh out these grounds. He was unable to do so.
The amended application and the supporting statement are deficient in respect of at least grounds two to nine. They do not identify anything in relation to the decision of the Tribunal or the proceedings before the Tribunal to assist this Court in determining whether there is any reviewable legal error. As I have already stated, I invited the applicant to put anything that might assist me in identifying any legal error. Not only was he not able to detail his claims, he expressly declined to add anything.
Conclusion
Essentially the Tribunal decision was that it had insufficient information provided by the applicant to be able to reach a conclusion that he had any well founded fear of persecution. These findings by the Tribunal were clearly open to it on the material before it.
I am satisfied the Tribunal made no legal error going to jurisdiction in coming to its decision. I therefore find that the decision of the Tribunal is a privative clause decision having regard to the High Court authority in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
The application, having been lodged with this Court well outside the time limit set down in s.477(1A), is therefore incompetent. In the circumstances I have no alternative but to dismiss the application.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Mowbray FM
Associate: Kelisiana Thynne
Date: 12 January 2005
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