SZGWD v Minister for Immigration

[2005] FMCA 1956

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGWD v MINISTER FOR IMMIGRATION & ANOR [2005] FMCA 1956

MIGRATION – RRT decision – Bangladeshi youth claimed persecution by step‑mother – no error in Tribunal’s reasoning – no denial of procedural fairness nor bias in hearing – also discretionary reasons for refusing relief.

Acts Interpretation Act 1901 (Cth), s.8
Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.417, 425A(3), 474(1), 477(1A), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41

Applicants S69 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 318
Applicants S69 of 2003 v Minister for Immigration [2004] FMCA 754
Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24

SZFIH v Minister for Immigration & Anor [2005] FMCA 1847
SZFKF v Minister for Immigration [2005] FMCA 1152

Applicant: SZGWD

First Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG2021 of 2005

Judgment of: Smith FM

Hearing date: 20 December 2005

Delivered at: Sydney

Delivered on: 20 December 2005

REPRESENTATION

Counsel for the Applicant: Applicant in person

Counsel for the First Respondent: Mr J Smith

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application is dismissed. 

2. The applicant must pay the first respondent’s costs in the sum of $6,000. 

3. This order shall take effect on 31 January 2006. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2021 of 2005

SZGWD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. This is an application filed on 1 August 2005 under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 21 August 2002 and handed down on 11 September 2002.  The Tribunal affirmed a decision of a delegate which refused to grant a protection visa to the applicant.  The delegate’s decision was taken on 24 March 2000, and the applicant’s application for a protection visa was lodged on 30 December 1999.  The delays while the matter was before the Tribunal are in part accounted for by an earlier decision of the Tribunal which was set aside on judicial review by consent order of Hill J on 13 November 2000. 

2. The Tribunal’s decision reviewed not only a decision concerning the applicant’s eligibility for a protection visa, but also another decision concerning his sister’s eligibility.  The Tribunal affirmed both decisions.  However, for reasons which do not appear in the material before me, the sister is not a party to the application to the Court, and I do not need to consider the validity of the Tribunal’s decision in relation to her matter. 

3. Section 483A has been repealed by the Migration Litigation Reform Act 2005 (Cth). However, the repeal does not affect the continuing of this proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8).

4. The Court’s jurisdiction under s.483A is the same as the Federal Court jurisdiction under s.39B of the Judiciary Act 1903 (Cth). In relation to the present proceeding, the Court’s powers are subject to the limitations of Pt.8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the decision was affected by jurisdictional error. I do not have power myself to decide whether the applicant’s claims should be believed, nor whether he qualifies for a refugee visa or any other permission to stay in Australia.

5. The applicant arrived in Australia on a three months visitor’s visa in November 1999.  As I have indicated, he applied for a protection visa on 30 December 1999, and his sister applied at the same time for the same visa.  At that time he was aged 16 and she was 15.  They narrated their circumstances in identical terms:  

   My mother died soon after giving birth to my sister, A, on the delivery bed on 17‑09‑1984 (certified copy of death certificate attached).  My father then married for the second time.  He, later on, became mentally disordered and was under the treatment of a qualified mental disease physician (certified copy of doctor’s certificate and prescriptions attached).  Our step mother was very cruel on us.  My sister, A, and myself were being brought up by our sister, Mrs K, and our grandmother (maternal), Mrs H.  We were solely relying on our sister’s income as my father, being instigated by our step mother, refused to bear any expenditure for us.  After our sister K joined her husband in Australia we became financially helpless.  My grandmother then used to ask my father for money for our livelihood, which he consistently refused.  Several times our father used to beat my sister and myself and we became subject to severe domestic violence and mistreatment.  This made both of us mentally seriously ill (certified copies of doctor’s treatment report attached).  The incidents were reported to the police, but they did not take any action on the ground that it was family matter and our father and his relatives had strong influence over the police administration.  So, we found our lives at risk and thought it safe to join our sister, K, in Australia, as we were totally dependent on K, both financially and morally, even after her departure to Australia. 

6. In support of their claims they submitted what were claimed to be medical reports concerning the mental health of the applicant, his sister and their father.  The weight to be given to that evidence was a matter which concerned the Tribunal as originally constituted.  However, the Tribunal decision which I am reviewing did not find it necessary to address that aspect. 

7. After the remitter of the application for review, the applicant and his sister were invited to a hearing by the reconstituted Tribunal on 9 January 2001, which was moved at their request to 1 February 2001.  They attended and were questioned separately and then together by the Tribunal.  A transcript of the hearing is in evidence before me, and I accept that transcript as a true transcript of the full recording of the Tribunal hearing.  The transcript shows, and I accept, that the tape was turned off only after the member had left the hearing room. 

8. Towards the end of the hearing the applicant referred to his elder sister who is a permanent resident of Australia and with whom he resided.  The transcript shows: 

   Tribunal:I’m surprised she didn’t come in to give evidence as well, she could have told me whether your father’s alive, she would know whether her father’s alive wouldn’t she. 

   Applicant:She is a student and she is doing her studies, therefore she could not come. 

   Tribunal:Well perhaps I should adjourn the application for a fortnight and she can come in, maybe she can sort it out. 

   Applicant:Yes my sister may come.  But she has problem of two children, two small children that she has to look after. 

   Tribunal:Well I guess in consideration to that Mr [Applicant] you’ll get a letter from me, I should imagine.  I’ll give you an opportunity to get your sister in if you want to persist with this application in its present form.  I’ll give you the opportunity of bringing your other sister in.  It’s her father as well isn’t it? 

   Applicant:Yes. 

9. The Court Book contains a subsequent invitation sent to the applicant, which he admits he received, which said: “the Tribunal Member has requested you come to a further hearing” and appointed a hearing for 20 February 2001 at 2.00 pm. 

10. The applicant and his younger sister, who at that time was a co‑applicant, did attend in response to that request.  They sought no further adjournment and gave further evidence.  At the commencement, the transcript shows: 

    Tribunal:I thought we were going to have your sister with us today. 

    Applicant:No she was supposed to come but she had to go to College today that is why, because she’s in College she couldn’t be here today. 

    Tribunal: What does that mean Mr [Applicant], that College is more important today than your application is it? 

    Applicant:She’s got a little baby too, that is the reason. 

11. The applicant made various complaints about the Tribunal’s conduct of the hearing on 1 February 2001 and 20 February 2001 which I shall consider below. 

12. Although the applicant has not taken any point in relation to the notice given for the adjourned hearing, a submission filed on behalf of the Minister raises an issue whether the absence of the full period prescribed for the purposes of s.425A(3) would result in the invalidity of the Tribunal’s substantive decision based on the reasoning of Barnes FM in SZFKF v Minister for Immigration [2005] FMCA 1152. This is an area of the law which is at present not settled, and an appeal is pending from Barnes FM’s decision. I have myself addressed the issue recently in SZFIH v Minister for Immigration & Anor [2005] FMCA 1847, where I reached an opinion differing from Barnes FM to some extent. I arrived at the opinion, which I maintain, that it is not the intention of the Migration Act that a substantive decision of the Tribunal should be invalid by reason of a shorter period of notice being given of an adjourned or rescheduled hearing, where that period of notice is consented to or acquiesced in by an applicant and where no denial of procedural fairness has resulted. On the evidence in the present case, it appears to me that the applicant probably did consent or acquiesce in the period of notice given by the Tribunal. I am not satisfied that in the present circumstances the absence of a fuller period for the adjournment results in the invalidity of the Tribunal’s subsequent decision.

13. In its statement of reasons handed down on 11 September 2002, the Tribunal identified the claims made by the applicant in his visa application in a manner which in my opinion did not overlook any significant claim.  It then referred to some country information about the situation in Bangladesh and freedom of movement in that country.  Most of this was relevant only to the situation which would be faced in Bangladesh by the sister. 

14. The Tribunal noted that by the time of its decision the applicant was a young adult of 17, and had attained a reasonable standard of education.  It said:  “I am not satisfied that the Applicant will be economically disadvantaged compared to most other young Bangladeshi adults” if he returned to Bangladesh. 

15. The Tribunal addressed the applicant’s fears of persecution instigated by his step‑mother, and found:  

    It may be that the Applicants would need to relocate within Bangladesh.  They are young adults with relatively good educations.  There is freedom of movement within Bangladesh.  I am not satisfied that it would be unreasonable for them to relocate if necessary. 

16. This finding provided the Tribunal’s first reason for affirming the delegate’s decision, and in my opinion reveals no error of law or otherwise amounting to jurisdictional error. 

17. A second reason for the Tribunal affirming the delegate’s decision was: 

    I am not satisfied that there is a real chance that the Applicants would be persecuted by their step‑mother or anyone acting on her behalf should they return to Bangladesh.  I am not satisfied that any such fear that they may have is well founded. 

18. That conclusion depended upon an assessment of the factual history claimed by the applicants, and in my opinion it was open to the Tribunal to so conclude. 

19. A third reason given by the Tribunal for affirming the delegate’s decision was: 

    The Applicant brother also claims that they are at risk of attack by political activists or terrorists because they are orphans and political activists and terrorists attack orphans.  I have not been able to find any support for such a proposition.  I am not satisfied that they would be at any risk of harm from political activists or terrorists.  I am not satisfied that any such fear they may have is well founded. 

20. That conclusion was also an assessment of the claims made by the applicant which, in my opinion, was open to the Tribunal as a matter of fact and law. 

21. There had been a live issue at the hearing before the Tribunal whether, in fact, the applicants were orphans as they claimed.  Plainly inconsistent evidence about whether their father was known to be alive was given by the applicant and his sister in a manner that reflected adversely on the general credibility of both of them.  However, the Tribunal has given them the benefit of doubts in relation to their factual claims, and in my opinion it arrived at conclusions assessing those claims by reference to the Refugees Convention in a manner which showed no error. 

22. The Tribunal’s decision was handed down and notified to the applicant on 11 September 2002.  There was then a significant delay before he commenced the present proceeding for judicial review, and this was the subject of evidence by the applicant which I shall address below.  His present application was filed on 1 August 2005 while he was held in Villawood Detention Centre. 

23. His application makes, in effect, what I think are two contentions.  The first is that the Tribunal asked itself “the wrong question regarding my persecution and did not take into considering of the oral evidence regarding my persecution”. 

24. This has not been elaborated in the application, nor in any manner which I am able to comprehend in the subsequent written and oral submissions of the applicant.  In my opinion, the Tribunal’s reasons show sufficiently that it has been alive to the claims made by the applicant and has addressed them to such extent as it was required to do so. 

25. The second contention in the application is that there was a denial of natural justice because “the Tribunal was biased, or in the alternative, there was an apprehension of bias”. 

26. This was not particularised other than by making the incorrectly premised assertion that “the Tribunal has denied the procedural fairness by ruling out my claim as fabricated without proper investigation”.  However, the Tribunal did not follow that path of reasoning, as I have indicated above. 

27. Considering the allegation of bias broadly, on my reading of the transcript of the two hearings conducted by the Tribunal, I do not find anything that occurred which might cause a fair‑minded lay observer to have a reasonable apprehension that the Tribunal did not bring an impartial mind to its decision‑making within the principles identified in Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425.

28. The Tribunal at times used language which made abundantly plain that it had difficulty believing the applicant and his sister when there emerged a clear inconsistency about their knowledge of whether their father was alive.  However, in my opinion, nothing it said showed that it shut its mind on this or other issues, to the extent of not being open to persuasion if this were possible in the circumstances.  Its readiness to allow the applicant this opportunity was demonstrated by several steps it took to allow both the applicant and his sister to change or improve their evidence, including by adjourning to allow them to confer together so as to arrive at consistent and considered evidence.  It then also, as I have indicated, further adjourned the hearing to allow the Australian resident sister to clarify the true factual situation in relation to the father.  The transcript of the second hearing reveals the Tribunal gave many further opportunities to the applicant to improve and add to their evidence.  On all the evidence before me, I am not satisfied that any denial of procedural fairness occurred in this case, nor that there was anything which might give rise to a reasonable apprehension of bias.  

29. The applicant has not filed an amended application as directed, but has filed three further documents.  These mostly contain general assertions of heads of judicial review without particulars which allow me to meaningfully address them.  To the extent that they have particularity, I have addressed them above apart from some additional specific criticisms of the Tribunal which were made in that document and in the applicant’s oral submissions today. 

30. One complaint was that the Tribunal did not allow the applicant to talk at the hearing.  However, as I have indicated above, in my opinion he was given more than ample opportunity to give his evidence in support of his claims. 

31. The applicant also complained that he had asked the Tribunal for an opportunity to submit documents in support of his case and was denied such an opportunity.  However, there is no evidence of this at all, and I find that it did not happen.  The transcript of both hearings reveals no such request being made to the Tribunal member before the member left the room on both occasions.  The applicant did not suggest that he made any written request for further opportunities to submit documents.  The chronology of the application for review reveals that he had more than ample opportunities to submit documents in support of his claims if he really wished to. 

32. I invited the applicant to show me in the transcript where he had a complaint about how the hearing was conducted.  He identified several points where he said he was concerned about the Tribunal’s questions, but was not able to elaborate why the questions he pointed to were unfairly asked.  In my opinion, none of the questions asked by the Tribunal were unfairly or irrelevantly asked of the applicant. 

33. Another complaint made by the applicant to me today and in one of his written documents was that, in effect, the Tribunal member rushed the hearing by looking at his watch.  However, this is not the picture of the hearing which I gained from reading the transcript, and the applicant has not given any sworn evidence in support of that contention.  I do not accept that it happened. 

34. The applicant made other contentions which were plainly inconsistent with the transcript, including that he was given no chance to talk to his sister, being either his younger sister or his elder sister.  However, the Tribunal’s record shows that in fact an adjournment occurred in the course of the first hearing to allow the applicant to confer with his younger sister, and another adjournment occurred to allow the elder sister to attend as a witness. 

35. The applicant was not able to elaborate any other argument to show jurisdictional error in the Tribunal’s decision which requires my attention. 

36. For the above reasons, I have concluded that the Tribunal’s decision is not vitiated by jurisdictional error and is therefore a privative clause decision. The applicant’s application must be dismissed for that reason, i.e. because relief is barred under s.474(1) and by reason of the lapse of time under s.477(1A).

37. However, there is a further reason for dismissing the application, and this has been explored in the oral evidence and submissions presented today.  In my opinion, the Court should refuse relief in its discretion due to the delay of the applicant in seeking relief, and his conduct in pursuing other remedies in relation to his immigration status which were inconsistent with keeping alive any contention that the Tribunal had arrived at an invalid decision on his protection visa application. 

38. The applicant was put on notice that this was an issue by a Response filed by the Minister on 27 September 2005, but filed no evidence to meet that contention.  However, he accepted my invitation to give evidence from the witness box explaining his delay. 

39. The documents in the Court Book show that a person attended to receive the Tribunal’s decision on the date of handing down, being 11 September 2002.  The documents identify that person as the applicant accompanied by a friend, and contain a receipt signed by that person.  The signature is not identical to earlier signatures of the applicant but, taking into account his maturing years over the period of his appeal, I consider that on the balance of probabilities it is the applicant’s signature and that he attended in person to receive the Tribunal’s decision. 

1. The applicant initially denied that this was his signature, denied that he attended to receive the Tribunal’s decision, and denied that he ever saw the Tribunal’s decision until he was held in Villawood. However, under cross‑examination he admitted that at some point in September 2002 he became aware at least that the Tribunal had decided against him. He said he had been told this on the telephone by the Department of Immigration. He said that he then sought advice from an Immigration Rights Advice Centre and was advised that he only had one option, which was to apply to the Minister for an exercise of the discretion available to the Minister under s.417. He said he made such an application and that it was refused. He could not remember when he learned this, but at the latest it was early in 2003.

2. The applicant said that with the assistance of his Australian brother‑in‑law he then sought advice from a migration agent, and was advised to make an application for a different class of visa, a close‑ties visa, and that an application for this was lodged on 6 June 2003.  He was quite definite about that date at several points in his evidence.  By the end of 2003 he was aware that this application had been refused, and he then sought advice on the refusal of that application again from the Immigration Rights Advice Centre.  His evidence may have been that he then made another application to the Minister, but this is unclear to me without reference to a transcript. 

3. As I understood his evidence, he then took no further steps to rectify his illegal immigration status.  In early 2005 he was found working without permission, and was taken into immigration detention.  At that location he received advice that he should apply for judicial review, not of the Tribunal’s decision on his refugee application, but of the Department’s refusal of a close‑ties visa application.  The Minister has not presented evidence to me as to that application, but the applicant agreed that he had attended a hearing in the Federal Court which had led to the dismissal of that application.  It was only after that happened, that the applicant decided to commence his present proceedings for judicial review of the protection visa application decision of the Tribunal. 

4. In my opinion, on the applicant’s own evidence he has not provided a satisfactory explanation for the delay of nearly three years in commencing judicial review proceedings after he was aware of the Tribunal’s adverse decision.  Moreover, in my opinion his conduct in pursuing alternative avenues for gaining rights of residence in Australia does not excuse nor explain the delay, but indeed is conduct inconsistent with now seeking the assistance of the Court to invalidate the Tribunal’s decision.  The circumstances are similar to those which I found to have justified the exercise of the discretion to refuse relief in Applicants S69 of 2003 v Minister for Immigration [2004] FMCA 754, which was upheld by Sackville J in Applicants S69 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 318 at [32]. In my opinion, the discretion which McHugh J has referred to in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 at [80] should be exercised against the applicant in the present case in the circumstances I have set out above. When reaching that conclusion, I have taken into account the full personal circumstances of the applicant as revealed on the evidence before me.

5. For the above reasons, I would order that the application should be dismissed.  To give the applicant time to receive the revised oral reasons I have delivered, and taking into account the January vacation period, I propose to order that my order shall not take effect until 31 January 2006.  I would expect that the first respondent would not take steps to remove the applicant involuntarily from Australia before my order takes effect. 

I certify that the preceding forty‑four (44) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate:  Lilian Khaw

Date:  16 January 2006