SZGPK v Minister for Immigration

[2008] FMCA 1054

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGPK v MINISTER FOR IMMIGRATION & ANOR [2008] FMCA 1054

MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – application for leave to reinstate proceedings dismissed for non-appearance by applicant – principles to be applied – no satisfactory explanation for non-appearance – case had no reasonable prospects of success – no need to consider possible prejudice to respondents caused by a reinstatement of the proceedings – application to reinstate refused.

Federal Magistrates Court Rules 2001, rr.13.03A, 13.10

Dowling v John Fairfax Publications Pty Limited [2007] FMCA 2104
Dowling v John Fairfax Publications Pty Limited (No. 3) [2008] FMCA 845

Applicant: SZGPK

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3572 of 2007

Judgment of: Cameron FM

Hearing date: 18 July 2008

Date of Last Submission: 18 July 2008

Delivered at: Sydney

Delivered on: 18 July 2008

REPRESENTATION

The Applicant appeared in person.

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. The applicant’s application in a case dated 9 July 2008 be refused.

2. The applicant pay the first respondent’s costs of and incidental to his application in a case, fixed in the amount of $500.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3572 of 2007

SZGPK

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant is a Hindu citizen of Bangladesh, where he claims he was an active member of the Awami League. He alleges that while in Bangladesh he helped with elections and that this subsequently led to his persecution. The applicant left Bangladesh and arrived in Australia where he alleges he has been actively participating in programs and activities organised by the Australian Forum for Minorities in Bangladesh.

2. The applicant claims to fear persecution in Bangladesh because of his political activities and his Hindu religion.

3. After his arrival in Australia, the applicant lodged an application for a protection visa. This was refused by the Minister’s delegate on 29 November 2004. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision.

4. At the outset, it should be noted that the Tribunal decision the subject of these proceedings is the third such decision relating the applicant. The first Tribunal decision was signed on 6 May 2005 and was quashed by order of this Court on 12 October 2006 (Court Book (“CB”) pages 71, 88). The second decision relating the applicant was signed by the Tribunal on 23 February 2007 and was subsequently quashed by order of this Court on 6 August 2007 (CB 110, 126). The applicant was unsuccessful before the Tribunal for a third time by way of its decision signed on 3 October 2007 (CB 181) and has applied to the Court again for judicial review.

Proceedings in this Court

1. The applicant’s hearing was to take place on 19 June 2008 but he failed to appear. The application was dismissed pursuant to r.13.03A(c) of the Federal Magistrate Court Rules 2001 (“Rules”). On 9 July 2008 the applicant filed an application in a case, in essence seeking the vacation of the orders made on 19 June 2008 and the relisting of the matter for consideration on its merits.

Considerations

1. The principles to be applied in applications such as these are:

   a)the applicant must provide a satisfactory explanation for his failure to appear at the listed hearing;

   b)the applicant’s case must be at least arguable or perhaps nowadays under the Rules it should be tested against the requirement that a case have reasonable prospects of success; and

   c)any prejudice to the respondent must be taken into consideration.

Satisfactory explanation

1. In his evidence today, the applicant said that he had recently been suffering from an injury which was described in the medical certificates which he tendered as being an injury to the right patella, which, according to those medical certificates, dated 10 April 2008, rendered him “unfit for duty” or “unfit for work” from 8 April 2008 to 14 April 2008 and from 10 April 2008 until 2 May 2008. Clearly, both those dates preceded the listed hearing by some weeks.

2. The applicant said that although as at the date of the listed hearing, he was still in pain as a result of the injury, nevertheless, it was not the injury which kept him from Court. It was simply that he forgot to come. He explained that his failure to remember to attend his hearing was caused by his mental state and his stress. It should not be forgotten that the hearing the applicant failed to attend was a hearing where he sought the setting aside of the Tribunal’s decision which would, if acted upon, see him return to the country where he fears persecution.

3. Notwithstanding the stress which the applicant said he was under, which appears to have arisen out of his injury and other matters beyond his control, it does not seem that his fear of returning to Bangladesh was sufficiently on his mind that he remembered to come to Court for what, if his allegations to fear persecution are to be believed, would have been a matter of the utmost significance to him. It should be noted that in his evidence today, when asked what he feared were he to return to Bangladesh, the applicant said that he was afraid that he would be killed. In those circumstances, I cannot accept that the applicant simply forgot to attend Court.

4. However, if the applicant did simply forget to attend Court, then that is far from a satisfactory explanation for his non-attendance.

5. He also said in his evidence today that he still retained the sheet of paper which had been given to him at the first return date of his application, which notified him of the 19 June 2008 hearing date. He agreed that he had attended that first return date. It should be noted that he filed written submissions in support of his application on 6 June 2008. At the same time he also sought to file an amended application, which was rejected because it was so far outside the timetable set at the first return date that the Registry would not accept it for filing.

6. All in all, I cannot accept the accuracy of the applicant’s explanation that he simply forgot because, if, as he says, he fears death upon return to Bangladesh, the Court date of 19 June 2008 was not the sort of date that one would simply forget. But, were I to be wrong in that conclusion, I would, nevertheless, reject the explanation of a simple lapse of memory as being a satisfactory explanation for his non‑attendance on that occasion.

Arguable case/reasonable prospects of success

1. Turning to whether the applicant’ case, were it to be permitted to be reopened, would be one which the Court ought to consider, I should note at this point that although the authorities tend to suggest that an applicant need merely make out that he has an arguable case, given that the rules now provide that an application may be dismissed under r.13.10(a) if it has no reasonable prospects of success, I consider that it is that test which is an appropriate one to consider in the circumstances of this matter. As to what amounts to reasonable prospects of success, I have recently considered that issue in my judgments in Dowling v John Fairfax Publications Pty Limited [2007] FMCA 2104 and Dowling v John Fairfax Publications Pty Limited (No. 3) [2008] FMCA 845. In considering whether the application that this case has reasonable prospects of success, I will apply the reasoning and the analysis of the law which I expressed in those judgments.

The application

1. The application which was filed to commence these proceedings contained a number of grounds. In his submissions today, the applicant said that he wished to rely on the matters contained in the amended application, which he had sought to file and which although rejected by the Registry had remained on the Court file as, in cases such as these, such amended applications are generally filed by consent or by leave at the hearing because unrepresented litigants frequently do file their documents late and usually no prejudice is occasioned to the respondents on that account. In those circumstances, I give no further consideration to the matters contained in the original application. Moreover, I would have in any event approached the matter on the basis of the proposed amended application given that the applicant’s written outline of submissions filed on 6 June 2008 addresses the allegations made in the proposed amended application.

2. The amended application pleads three grounds. They are that:

   a)the Tribunal failed to exercise its jurisdiction under the MigrationAct 1958 (“Act”), which allegation is particularised by reference to an alleged failure by the Tribunal to place any weight on documents which the applicant placed before it;

   b)the Tribunal failed to consider his claim of persecution by reason of his religion; and

   c)the Tribunal did not follow proper procedure in that it acted in bad faith.

Failed to exercise jurisdiction

1. Turning to the allegation that the Tribunal failed to exercise its jurisdiction because it did not put weight on the documents which the applicant submitted to it, it should be stated clearly that the weight which the Tribunal places on evidence before it is solely a matter for it.  The weight to be given to evidence is a part of the Tribunal’s fact‑finding function, which the Court cannot review. The role of the Tribunal is to make findings of fact and reach conclusions on the merits of an application before it based on those findings of fact. It is the Court’s role to ensure that the Tribunal follows proper procedure and applies the law correctly. The Court cannot review the Tribunal’s factual findings in the way that the applicant suggests it should. It would be a different matter if the Tribunal had overlooked important information, but the information in question, identified in the applicant’s written submissions as being a hospital discharge certificate and reference letters, were referred to specifically by the Tribunal at pp.23 and 24 of its decision (CB 203 and 204). Consequently, the applicant’s complaint is that the Tribunal should have given greater credence to the documents which he presented. For the reasons I have already articulated, that is not a basis upon which the Tribunal’s decision can be set aside.

Failed to consider his claim of persecution by reason of his religion

1. Turning to the second ground, that the Tribunal failed to consider the applicant’s claim of persecution by reason of his religion, a consideration of the Tribunal’s decision demonstrates that this allegation cannot be made out on the facts. The Tribunal noted that the applicant had stated that his claims of persecution relating to his political activities and his religion ought to be considered together, which is what it did. Moreover, although the Tribunal did this, it also gave separate consideration to the applicant’s religion‑based claims at pp.21 and 22 of its decision (CB 201 and 202). Consequently, as I have said, on the facts, this allegation cannot be made out.

Tribunal did not follow proper procedure in that it acted in bad faith

1. Turning to the third ground, that the Tribunal did not follow proper procedure in that it acted in bad faith, the essence of this allegation is fleshed out in the written submissions. It is said there that the Tribunal did not make a bona fide attempt to exercise its jurisdiction, first, because of its finding concerning the applicant’s activities in Australia such as his involvement with the Australian Forum for Minorities in Bangladesh, in that it rejected his explanation for his delay in pursuing them and was concerned about his motivations in engaging with the forum and, secondly, because it simply adopted the decision which had been made by the Tribunal as previously constituted.

2. Putting aside the fact that an allegation of bad faith is a serious one indeed, which imputes personal misconduct to the Tribunal member and thus would, if the matter were to proceed to a hearing, require cogent evidence in support of it, the evidence of the Tribunal’s decision record dispels any concerns that it should be set aside for the reasons advanced by the applicant in the third paragraph of the proposed amended application.

3. As to the matter of his activity in Australia, what the applicant is really saying is that he disagrees with the Tribunal’s conclusions concerning his conduct in Australia. A finding of fact, even if an erroneous one, is not a basis on which to set aside the Tribunal’s decision, except in exceptional circumstances which do not exist here. Moreover, the factual conclusion was one which was well open to the Tribunal on the evidence and does not show any signs of a want of good faith.

4. As to the allegation that the Tribunal simply repeated its earlier decision, the decision record on this occasion shows considerable attention to, and consideration of, the evidence which was before the Tribunal. It is clear that the Tribunal arrived at a fresh decision and one which does not suggest that it failed to act in good faith.

Finding on prospects of success

1. In my view, none of the matters which the applicant would seek to raise in his amended application have any reasonable prospects of success.

Prejudice to respondents

1. In those circumstances, it is not necessary to consider whether, were leave to be granted, any irremediable prejudice would be suffered by the respondent.

Conclusion

1. In those circumstances, the application to set aside the orders made on 19 June 2008 is refused.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM

Associate:

Date: 30 July 2008