SZGWD v Minister for Immigration and Multicultural Affairs

[2006] FCA 292

FEDERAL COURT OF AUSTRALIA

SZGWD v Minister for Immigration & Multicultural Affairs [2006] FCA 292

SZGWD v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NSD18 OF 2006

EMMETT J
6 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD18 OF 2006

On appeal from a magistrate of the Federal Magistrates Court of Australia

BETWEEN:

SZGWD
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

6 MARCH 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the first respondent’s costs in the sum of $3200.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD18 OF 2006

On appeal from a magistrate of the Federal Magistrates Court of Australia

BETWEEN:

SZGWD
APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE:

6 MARCH 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court given on 20 December 2005.  The appeal concerns an application for judicial review of a decision of the second respondent, the Refuge Review Tribunal (‘the Tribunal’). 

2. The appellant is a citizen of Bangladesh, who arrived in Australia with his sister on 20 November 1999.  On 30 December 1999, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 24 March 2000, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), refused to grant a protection visa to the appellant and to his sister.

3. On 3 April 2000, an application for review of that decision was lodged with the Tribunal.  On 11 August 2000, the Tribunal affirmed the decision not to grant protection visas and an application was made to the Federal Court for a review of that decision.  On 13 November 2000, by consent, the Tribunal’s decision was set aside and the matter was remitted to the Tribunal for reconsideration.  The matter was reconsidered by the Tribunal differently constituted and on 21 August 2002, that Tribunal affirmed the decision not to grant protection visas.  The reasons for that decision were published on 11 September 2002.

4. On 7 August 2005, the appellant commenced a proceeding in the Federal Magistrates Court seeking relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal’s decision of 21 August 2002. On 26 September 2005, the Minister filed a notice of objection to competency on the basis that the application was brought outside the time limited by s 477 of the Act. On 20 December 2005, the Federal Magistrates Court ordered that the proceeding be dismissed with costs. That order was to take effect on 31 January 2006. A notice of appeal from the orders was filed on 30 December 2005.

5. The Tribunal accepted that the appellant is a Bangladeshi national and that he was brought to Australia with his sister by their elder sister because of an unfortunate family situation in Bangladesh.  They claimed their stepmother treated them badly and made threats against them and they believed that she would harm them if they returned to Bangladesh.  They said that their stepmother would come to know if they returned to Bangladesh, since she has relatives who live near their relatives and she could use the police to bring charges against them.  The appellant claimed that he would have to seek the assistance of his father if he and his sister returned to Bangladesh, as they would be destitute and would have no security. 

6. The Tribunal found that the appellant had a reasonable standard of education and was not satisfied that he would be economically disadvantaged compared to most other young Bangladeshi adults.  The Tribunal was not satisfied that the appellant would be forced to seek the assistance of his father or would come to his stepmother’s attention in the way alleged.  The Tribunal was not satisfied that the appellant stepmother would become aware of the presence of himself and his sister if they returned to Bangladesh.  The Tribunal considered there was no reason why his stepmother would be expecting their return to Bangladesh, since they had not seen her for some years. 

7. The appellant also claimed he was at risk of attack by political activists or terrorists because he and his sister are orphans and political activists and terrorists attack orphans.  The Tribunal was unable to find any support for such a proposition and was not satisfied that the appellant would be at any risk of harm from political activists or terrorists.  The Tribunal was not satisfied that any such fear they may have was well-founded.  The Tribunal was not satisfied that the appellant was a person to whom Australia has protection obligations.

8. The application to the Federal Magistrates Court is not particularly informative as to grounds of review.  It asserts that the Tribunal exceeded its jurisdiction or constructively failed to exercise jurisdiction by asking itself the wrong question regarding persecution of the appellant.  It claims that the Tribunal did not take into consideration the oral evidence regarding persecution of the appellant and denied natural justice in determining the appellant's application.  There was also an allegation of bias or apprehended bias on the part of the Tribunal.  No particulars are furnished of those grounds.

9. In an affidavit filed in the Federal Magistrates Court, further claims were made.  However, the affidavit simply records, in typescript form, the grounds included in the original handwritten application.  The affidavit also makes assertions that the Tribunal failed to understand the appellant’s claims and failed to consider relevant matters.  The affidavit said that further particulars would be provided, but none appear to have been providing.

10. The primary judge gave reasons for concluding that there was no jurisdictional error on the part of the Tribunal. His Honour observed that the decision of the Tribunal dealt with both the appellant and his sister but that, for reasons which do not appear in the material, the appellant’s sister was not a party to the application to the Federal Magistrates Court. His Honour dealt with the complaints in the application to the Court and the affidavit to which I have referred. His Honour also dealt with the way in which the Tribunal addressed the appellant's claims and concluded that there was no jurisdictional error in relation to the way in which the Tribunal appeared to have approached the matter. His Honour therefore concluded that the Tribunal’s decision was not vitiated by jurisdictional error and is therefore a privative clause decision and that the application was therefore barred by the operation of s 477 of the Act.

11. In any event, however, his Honour then addressed the question of delay and expressed the view that the Court should refuse relief in its discretion, even if relief were available, due to the delay of the appellant in seeking relief and his conduct in pursuing other remedies in relation to his immigration status that were inconsistent with keeping alive any contention that the Tribunal had arrived at an invalid decision in dealing with the review of his application for a protection visa.

12. His Honour observed that the appellant accepted that, at some point in September 2002, he became aware that the Tribunal had decided against him. He said he had been told that on the telephone by the Minister’s Department and that he then sought advice from the Immigration Rights Advice Centre. He said he was advised that he had only one option, which was to apply to the Minister for the exercise of discretion available to the Minister under s 417 of the Act. He made an application and it was refused. He learned of the refusal early in 2003.

13. The appellant said that he then sought advice from a migration agent and was advised to make an application for a different class of visa. An application for such a visa was lodged on 6 June 2003.  By the end of 2003, the appellant was aware that that application had been refused.  He then sought advice on that refusal from the Immigration Rights Advice Centre.  The appellant took no further steps to rectify his position as an unlawful non-resident.  In early 2005, he was found working without permission and taken into detention.

14. The appellant says that, at that time, he received advice that he should apply for judicial review of the Minister’s refusal of his second visa application.  The appellant said that he attended a hearing in the Federal Court which lead to the dismissal of that application.  It was only after that avenue was blocked that he commenced the present proceeding for judicial review of the decision refusing a protection visa.

15. The primary judge considered that the appellant, on his own evidence, provided no satisfactory explanation for the delay of nearly three years from commencing judicial review proceedings, after he was aware of the Tribunal’s adverse decision.  His Honour also considered the appellant’s conduct in pursuing alternative avenues for gaining rights of residence in Australia did not excuse or explain the delay, but was indeed conduct inconsistent with seeking the assistance of the Court to set aside the Tribunal’s decision.  For that reason, his Honour concluded that, even if there had been grounds of review available, relief would have been refused in the exercise of the Court’s discretion.

16. The appellant appeared without legal representation before this Court and relied on written submissions filed on 3 March 2006.  The written submissions reiterate the appellant’s claims of ill-treatment by his mother-in-law in Bangladesh.  He claims that there would be risks to his life if he stayed in Bangladesh and that his stepmother would hire terrorists and have him put in custody and state a false case against him.  His complaint about the Tribunal’s decision is that the Tribunal did not look at his case properly, did not properly inquire as to his protection visa application, made a decision without any proper inquiry and without any reason, did not give him a chance to prove he really would have problems if he goes back to Bangladesh and did not look at his case carefully.

17. No particulars are furnished of those assertions.  My reading of the reasons does not give rise to any sense of apprehension that the Tribunal may not have addressed the claims made by the appellant.  In dealing with the reasons of the primary judge, the appellant again asserts that his Honour did not look at each of his papers properly and did not properly characterise his grounds of review.  There is an assertion that the primary judge failed to find error on the part of the Tribunal and that there was therefore jurisdictional error.  Again, the assertion is totally unsupported by any particulars.

18. In addressing the question of delay, the appellant, in his written submissions, simply reiterated that the primary judge did not consider that he had strong grounds for judicial review and that his Honour took the judicial review application personally.  The assertions are difficult to understand and I shall state them verbatim:

    ‘18.However, smith fm also didn’t consider that the I have strong ground on my judicial review application.  He failed to find the ground, His honour failed to find the reason.  That is way he take my judicial review application personally, why I lodged the application after three years.  That’s way [sic] smith fm didn’t look case properly.

    19.The decision of smith Fm in relation to delay is failed to the applied proceedings.  The dismissal of proceeding on account without reason make the decision totally favors to respondent.’

    I invited the appellant to explain his complaints concerning the way in which the primary judge dealt with the delay but he was unable to expound on that question any further. 

19. I do not consider that there was any error on the part of the primary judge in the way in which he dealt with the matter, either on the merits or in the exercise of discretion.  It follows in my view that the appeal should be dismissed.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            23 March 2006

The Appellant appeared in person
Counsel for the First Respondent:	Ms L Clegg
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	6 March 2006
Date of Judgment:	6 March 2006