SZFEG v Minister for Immigration
[2005] FMCA 834
•1 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFEG v MINISTER FOR IMMIGRATION | [2005] FMCA 834 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Bangladesh – procedural fairness – natural justice – bona fides – good faith – no evidence of lack of procedural fairness – no denial of natural justice – no lack of good faith – no reviewable error. |
| Judiciary Act 1903 (Cth) s.39B Migration Act 1958 (Cth) ss.36(2), 65(1), 475A |
| Applicant NAOB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 33 Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24 Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 178 ALR 421 SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 668 |
| Applicant: | SZFEG |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 3556 of 2004 |
| Judgment of: | Scarlett FM |
| Hearing date: | 1 June 2005 |
| Date of Last Submission: | 1 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 1 June 2005 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Ms McNaughton |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
That the application is dismissed.
That the applicant is to pay the Respondent’s costs fixed in the sum of $5,000.00.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3556 of 2004
| SZFEG |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
The application before the Court is an application for review of a decision of the Refugee Review Tribunal. The decision was made on 26th October 2004. In that decision the Tribunal affirmed a decision by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant a protection visa to the applicant.
The applicant seeks a review of that decision today.
The applicant is a citizen of Bangladesh. He arrived in Australia on
18th January 2004. On 10th February of that year he lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused to grant that visa on 30th April 2004.
On 14th May 2004 the applicant applied to the Refugee Review Tribunal for review of that decision. The applicant attended a hearing of the Tribunal on Thursday 21st October 2004 and gave oral evidence. He was also asked a number of questions by the Tribunal member.
The Tribunal was not satisfied that the applicant had a well founded fear of persecution for any convention reason and found therefore that he did not satisfy the criteria set out in s. 36(2) of the Migration Act for a protection visa.
The applicant lodged his application on 6th December 2004.
On 29th March 2005 he filed an amended application. It is this amended application upon which the hearing proceeded today.
The applicant in his amended application seeks the following orders:
a)A declaration that the decision of the Tribunal is null and void;
b)
A writ of mandamus requiring the Tribunal to re-hear and
re-determine his application according to law;
c)A writ of certiorari removing into this Court to be quashed the decision of the Refugee Review Tribunal;
d)A writ of prohibition directed to the respondent preventing the respondent or the respondent's agents or delegates from acting upon or giving to or enforcing the decision of the Tribunal;
e)An order for costs;
f)Other orders.
The applicant claims five grounds for relief. They are as follows:
a)The Tribunal denied the applicant procedural fairness and natural justice and thereby committed a jurisdictional error.
b)The Tribunal acted in bad faith and therefore committed jurisdictional error. The decision of the Refugee Review Tribunal was not a decision made under the Migration Act 1958.
c)The decision of the Tribunal is affected by jurisdictional error. The decision of the Tribunal is affected by a constructive failure to exercise jurisdiction. The Tribunal made a mistake in determining the limits of its jurisdiction.
d)The Tribunal misconceived the duty it was under when it was reasoning its satisfaction in regards whether or not a protection visa is to be granted under s. 65(1) of the Act. The Tribunal breached the judicial duty to make or apply a finding of law using former logic.
e)The Tribunal failed to act judicially. The Tribunal exercised judicial power in a manner reserved for the exercise of executive power. The Tribunal did not maintain a separation between its judicial and executive exercises of power. A breach in the judicial duty to use former logic is a breach of the rule of law on the grounds of arbitrariness. The Tribunal did not uphold the rule of law. The Tribunal acted unconstitutionally.
Those are the grounds which are a most comprehensive set of grounds and appear to cover about every ground of relief available on judicial review with the exception of actual bias.
I note that whilst there is an assertion that the Tribunal acted unconstitutionally, there is no evidence that the Federal Attorney General or the Attorneys General or any of the states have been informed and there are no particulars of any unconstitutionality provided.
To my mind there is no evidence of any constitutional question at all. That part of the application need be taken no further.
The amended application provides for two sets of particulars headed Particulars 1 and Particulars 2. The paragraphs headed Particulars 1 refers to the applicant's claim that in ground number 4, that the Tribunal breached a judicial duty to make or apply a finding of law using formal logic.
The claim is that there was a fallacy of formal logic in the finding at law by the Tribunal as to the availability of protection of the applicant in persecution for political opinion through the Courts of Bangladesh and subsequently the finding in law that the applicant did not have a well founded fear of being persecuted.
The particulars go on:
The fallacy arises from an invalid inference pattern that is described in terms of formal logic. The fallacy of sentential logic occurs when the Tribunal denies the antecedents such that it held: If the applicant was found or will be in future found guilty by the Courts then the applicant committed the crimes charged of him. The applicant was found guilty by the Courts and in the future may or may not be found guilty by the Courts. Therefore the applicant is to be tried by the Courts in order to determine whether or not he committed the crimes charged of him.
The antecedent denied is the persecution of the applicant by the Courts for his political opinion. The fallacy of syllogistic logic occurs when the Tribunal fails to understand that from two particular premises nothing follows such that it held: Some prominent and high level ranking members of the Jatiya party are able to defend themselves before an independent judiciary.
The applicant is a low level member of the Jatiya party; therefore the applicant will not be able to defend himself before an independent judiciary. In doing so the Tribunal made errors of distribution in not having a conclusion follow the week of premise.
A simple answer to those particulars in the paragraphs headed Particulars 1 is that they do not set out a ground for judicial review.
It is not a ground for judicial review if it appears to the Court that there is a failure in logic. The assertion that high ranking members of a political party maybe able to defend themselves before an independent judiciary but someone in the position of the applicant, being a low level member of that party, will therefore not be able to defend himself before an independent judiciary is a submission as to fact and the conclusion to my mind does not follow as a direct consequence of the argument.
The comment that the Tribunal “made errors of distribution and not having a conclusion following the week of premise” is to my mind not an argument at all and it is not a matter that is to my mind capable of being reasonably understood. The grounds therefore under Particulars 1 can be dismissed without further consideration.
The applicant claims that he faced persecution in Bangladesh because of his political opinions and membership of the Jatiya party. He started his own company and joined the Jatiya party and was an enthusiastic albeit low level supporter of the party. He claims that on
10th August 2003 a group from the party's political opponents the BMP came to his business to extort money. When he was not able to pay they kidnapped him, beat him about the head, tried to force him to support their party. He lost consciousness and was hospitalised.
He and his family fled to Dhaka where he re-established his business. Two months later the same people attacked him again. They threatened him over the telephone and he said that when he reported the matter to the police, the police said that they would not take any action if the people were in fact supporters of the BMP.
The Tribunal accepted that the applicant had suffered two rather unpleasant attacks from these people and that he had suffered injury and hospitalisation. The Tribunal did not accept that the applicant had shown that these people were acting from political motives or were other than common criminals.
The Tribunal was critical of the applicant's conflicting evidence as to whether or not he had reported the assaults to the police and was not prepared to believe that the applicant could not expect the normal protection from the police that is available to other citizens of Bangladesh.
I might comment that there appears nothing in the applicant's case relating to the matters set out in Particulars 1 of the application relating to being charged and defending oneself before an independent judiciary because the applicant has not claimed that there were any charges brought against him, spurious or otherwise.
I asked the applicant about whether he had been denied procedural fairness and natural justice as he claimed. He told the Court that he had attended the hearing of the Tribunal and had given evidence.
There is no evidence that he was not able to give that evidence to the Tribunal and was not able to present his case.
I asked the applicant about his claim that the Tribunal had acted in bad faith. The applicant said that he actually did not mean bad faith.
What he meant was that the Tribunal did not really believe him.
That of course is not a matter of bad faith. The applicant was not able to provide, as I said earlier, any details of unconstitutionality.
The claims in Particulars 2 in subparagraphs (a) and (b) refer to a reiteration of the applicant's evidence about his fear of harm as a result of his membership of the Jatiya party and his fear that the government cannot protect him. These are factual matters which are not areas into which the Court can enter.
The third claim is that:
The applicant denied the opportunity to respond on the adverse information before the Tribunal and therefore committed jurisdictional error and an error of law.
The applicant was not able to provide particulars of that.
For the respondent Ms McNaughton of counsel submits that in order for the applicant to succeed he must show that the decision made by the Tribunal is not caught by s. 474 of the Migration Act, a privative clause. She refers the Court to the decision of the Full Court of the Federal Court in Applicant NAOB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 33 [11] which contains a summary of the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24.
The Full Court summarised the High Court saying that s. 474 insofar as it rendered final and conclusive a privative clause decision and protected it from challenge only did so in respect of decisions made under the Act, thus decisions which involved a failure to exercise jurisdiction or involve an excess of the jurisdiction conferred by the Act are not as a matter of statutory construction decisions made under the Act and are therefore not privative clause decisions protected by
s. 474. Put shortly, s. 474 does not apply to decisions which involve jurisdictional error and does not apply in particular to decisions which do not comply with the principles of natural justice.
Ms McNaughton submits that the applicant's first ground must fail as it is unsupported by any evidence and is misconceived. With respect, I agree. She submitted that the second ground relating to the claim that the Tribunal failed to act in a bona fide manner is one that imposes a heavy onus on an applicant who claims lack of good faith.
The allegation must be distinctly made and clearly proved, see Minister for Immigration and Multicultural Affairs v. Jia (2001) 178 ALR 421 at [69].
She also referred the Court to the decision of Von Doussa J in SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 668 where his Honour said that the finding of actual bias for the reasons for a decision alone are rare and exceptional.
She submitted that the applicant has failed to particularise this ground and that it should fail. The applicant of course has explained that when he said bad faith he did not mean bad faith as it is meant but a complaint about the failure of the Tribunal to believe him. That does not amount to bad faith and any person that appears before any Tribunal must accept the fact that the Tribunal may not accept his or her evidence. The grounds for constructive failure to exercise jurisdiction has not been particularised and there is no evidence of it.
The fourth and sixth ground, she submitted, appear to be an impermissible attempt to have the Court interfere with the conclusions on merits which are matters for the decision maker and not for a Court exercising judicial review. With respect, I agree.
The fifth ground that she refers to says that it does not appear to be related to the Tribunal's decision. That of course was a decision on illogicality to which I have already referred.
The fact is that the Court does not have the power to re-hear an application on the facts. It is clear that the applicant's evidence was not accepted by the Tribunal and the Tribunal made the finding that whilst it was satisfied that the applicant had been the victim of assault, threats and intimidation that this was not as a result of any political opinion but as a result of extortion by a common criminal.
Whilst it is regrettable that any person should be assaulted or threatened by criminals that is not a reason to find that a person has a well founded fear of persecution for convention reasons. There is no reviewable error. The application will be dismissed.
Ms McNaughton has drawn my attention to the fact that at page 35 at about point 1 of the Court book in the lengthy statement made by the applicant when he applied for a protection visa he did make the claim:
So began another nightmare, false charges were made against me for harassment.
There was no particularisation of that nor was there any evidence given by that except that the applicant did provide untranslated documents relating to Court proceedings to the Tribunal which the Tribunal was not able to deal with. In my view the decision of the Tribunal in rejecting the applicant's claim is not subject to any reviewable error insofar as it dealt with that very briefly referred to allegation.
There is an application for costs. The applicant has been unsuccessful in his claim and the counsel for the Minister seeks an order that the applicant should be responsible for the Minister's costs. Costs follow the event and I am of a view that this is a case where it is appropriate for an order for costs to be made.
The respondent seeks a lump sum of $5,000.00. The applicant says that he does not have the funds and it is not possible for him at this stage to pay those costs. I accept the fact that $5,000.00 is an amount of some substance. I propose to make an order for costs but I will allow a short period of time to pay.
I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A.Coutman
Date: 16 June 2005
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