SZQJG v Minister for Immigration
[2012] FMCA 387
•16 May 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQJG v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 387 |
| MIGRATION – Persecution – review of Refugee Review Tribunal (“Tribunal”) decision – visa – protection visa – refusal – application to bring proceedings out of time. PRACTICE & PROCEDURE – Application to set aside interlocutory dismissal. ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that it failed to consider the applicant’s claims, was biased, breached ss.424A and 425 of the Migration Act 1958, denied the applicant an opportunity to defend himself and failed to consider relevant evidence. |
| Migration Act 1958, ss.424A, 422B, 425, 477 Federal Magistrates Court Rules 2001, r.13.03C |
| SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 |
| Applicant: | SZQJG |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1279 of 2011 |
| Judgment of: | Cameron FM |
| Hearing date: | 2 May 2012 |
| Date of Last Submission: | 2 May 2012 |
| Delivered at: | Sydney |
| Delivered on: | 16 May 2012 |
REPRESENTATION
| The Applicant appeared in person |
| Solicitors for the Respondents: | Sparke Helmore |
ORDERS
The applicant’s application in a case filed on 19 March 2012 be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1279 of 2011
| SZQJG |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh. He claims that he was a member of the Bangladesh Nationalist Party (“BNP”) and that as a result he was harassed and assaulted by members of the Awami League. He also claims that he was abducted and had false allegations lodged against him.
The applicant claims to fear persecution in Bangladesh by reason of his political opinion.
After his arrival in Australia on 15 July 2010 on a visitor’s visa, the applicant lodged an application for a protection visa. This was refused by a delegate of the first respondent (“Minister”) on 10 December 2010 and the applicant notified by letter dated 22 December 2010. The applicant then applied to the second respondent (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and on 20 June 2011 applied to this Court for judicial review of the Tribunal’s decision.
At the first court date in this matter, a directions hearing at John Maddison Tower, 88 Goulburn Street, Sydney on 1 August 2011, the matter was fixed for hearing on 7 February 2012 and listed for mention on 20 December 2011. The mention was ordered for the purpose of advising the applicant where his 2012 hearing would be held. The applicant appeared in person on both 1 August 2011 and 20 December 2011 and on the latter occasion was advised that the hearing would be held at level 10, Terrace Tower, 80 William Street, Sydney.
When the matter came on for hearing at Terrace Tower at 10:15am on 7 February 2012 the applicant failed to appear. This led to the application being dismissed pursuant to r.13.03C(1)(c) of the Federal Magistrates Court Rules 2001. On 19 March 2012 the applicant filed an application in a case seeking the setting aside of the orders made in February.
In deciding whether to grant the present application, the relevant considerations appear in the circumstances to be whether the applicant’s explanation for his non-attendance on 7 February 2012 is satisfactory and whether, in any event, he has an arguable case on the principal application.
For the reasons which follow, the application in a case will be dismissed.
Satisfactory explanation
In his affidavit of 4 March 2012 filed in support of the application in a case the applicant deposed that he arrived at court (at Terrace Tower) on 7 February 2012 at 11:00am instead of at 10:15am because he had misunderstood the court’s location. In his evidence at the hearing of the application in a case, the applicant said that by the time he arrived on 7 February 2012, his hearing had concluded.
The applicant said in his oral evidence that although he attended the mention on 20 December 2011 he nevertheless went to John Maddison Tower on 7 February 2012. He said in response to questions from the solicitor for the Minister that he went to John Maddison Tower because he had gone there before. He said that he arrived there at 9am and that, when his matter was not called at 10:15am, he sought advice and was told that his hearing was at Terrace Tower. As recorded above, he said that by the time he got to Terrace Tower, the hearing was over.
Although the first two court events in this matter were listed at John Maddison Tower, at the second of those the applicant was advised that the hearing was to take place at Terrace Tower. In the circumstances, I do not find the applicant’s explanation for his non-attendance on 7 February 2012, that he had been to John Maddison Tower before so he went there again, to be a satisfactory one.
Reasonable prospects of success
Notwithstanding the unsatisfactory nature of the applicant’s explanation for his failure to attend the 7 February 2012 hearing, the orders made on that occasion may nevertheless be set aside if it is demonstrated that the application which was dismissed that day had reasonable prospects of success. In the context of this case, not only does determination of that issue involve an assessment of the allegations grounding the claim for substantive relief, but also a consideration of whether the applicant has reasonable prospects of obtaining an extension of time for the filing of the initiating application, it having been filed twenty-seven days out of time.
It is useful first to consider the bases of the applicant’s claim to be entitled to a protection visa and the Tribunal’s findings on that claim.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4-14 of the Tribunal’s decision. Relevant factual allegations are summarised below.
Application
In his protection visa application lodged on 25 August 2010 the applicant stated that if he returned to Bangladesh his political and business opponents would try to harm or kill him because he was a successful businessman and political figure. He stated that his opponents were jealous of him and had tried to get rid of him before. Whilst he reported the matter to the police and municipal council members several times, they did not take steps to protect him and he did not believe that they would try to protect him.
Department
The applicant attended an interview with the delegate of the Minister on 10 November 2010 where he produced an undated letter purportedly from the President of the Fatickchari Upazilla Committee of the BNP. That letter stated that the applicant had been joint secretary of the Fatickchari Upazilla Committee and the general secretary of the Dharmapur Union Committee in the Bangladesh Nationalist Chharta Dal, a sister organisation of the BNP. Also produced was a letter dated 20 September 2010 purportedly from a doctor in Chittagong stating that the applicant had been injured on 20 December 1994 and had sustained multiple wounds to and bruises on his head, leg, forearm and chest.
At the interview the applicant made the following claims:
a)he was born in Fatickchari, Chittagong in Bangladesh. He had been living in Sharjah in the United Arab Emirates (“UAE”) for between ten and thirteen years. He first went to Sharjah in 1996;
b)in 1991 when he was in Year 10 he became involved with the BNP and was still a member of the BNP. He had not been involved in any activities apart from regularly attending monthly meetings in Fatickchari. He continued to talk with the leaders of the party in his local area regularly and had donated 150,000 taka to the party;
c)he stopped attending school after Year 11 because he was involved with the BNP and had some problems with some members of the Awami League;
d)in a four or five month period in 1994, he and two or three other BNP leaders had been “deleting” posters and anti-BNP writing on a wall and as a result there was a clash with members of the Awami League. After this, he was threatened by the Awami League;
e)at the end of 1994 whilst leaving his college he was taken by members of the Awami League who bashed him and told him to stop his activities. He was cut on his head and hand and rendered unconscious. He was admitted to a clinic for fifteen or sixteen days. His father was warned that he should send the applicant abroad or he would be killed;
f)after his recovery, his father sent him abroad and he was unable to return to Bangladesh for four or five years because the Awami League had threatened to kill him. He returned in 2002 but the same members of the Awami League who had attacked him in 1994 harassed him. He was unable to stay in his village because he was not safe and had stayed in a hotel;
g)he started his own business in the UAE in 1997. The same members of the Awami League who attacked him in 1994 had gone to the UAE and from 2005 they caused problems for him;
h)when the caretaker government came into power false allegations of extortion and false tendering were lodged against him. On one occasion, on a date he could not remember, he was abducted by the Rapid Action Battalion (“RAB”) group and told that he had taken 200,000 taka that he had to return. They had also sent him a letter demanding some money. He was released the same day he was abducted. He believed that his abduction was planned by the Awami League to stop his activities and because he supported the BNP and because they might have found that “there were cases against him in Fatickchari”. He left for the UAE about a week later;
i)after failing to kill him, the Awami League brought false charges against him because they wanted to “trap” him so that he could not return to Bangladesh. He did not know the details of the charges because his brothers were young and could not obtain the documents. As a result of the charges, the police regularly visited his home looking for him;
j)he had returned to Bangladesh from the UAE four or five times because his wife, children and father were there. He met his family secretly because if his enemies had known he was in the country they would have killed him; and
k)members of the BNP were beaten up in Bangladesh and faced harassment and bullying by the governing party. They were not allowed to take part in meetings and demonstrations and were randomly arrested. BNP members were also killed. If he returned to Bangladesh he would be killed.
After the interview, the applicant produced to the department the following documents:
a)a letter dated 10 October 2010 purportedly from a lawyer in Chittagong repeating the claims made in the letter from the President of the Fatickchari Upazilla Committee of the BNP. The letter also stated that the Awami League had filed a false case against the applicant on 19 May 1993 and as a result the police, law enforcement authorities and “DAB Branch” were vigorously searching for him at home and abroad. If they found the applicant they would arrest him, gaol him, torture him and try to murder him;
b)a purported “First Information Report” in relation to a criminal case relating to events on 18 May 1993 when six Islamic Shibir workers (members of the Islami Chhatra Shibir, the student wing of the Jamaat-e-Islami party) entered someone’s house;
c)a translation of a purported charge sheet dated 1 January 1994 relating to the above criminal case naming the applicant as one of the accused who had absconded and requesting a warrant for his arrest;
d)a translation of a purported warrant for the applicant’s arrest issued by a magistrate on 1 January 1994;
e)an original and translation of a Nationality Certificate dated 20 January 2010 and purportedly signed by the chairman of the Dharmapur Union Parishad stating that the applicant is a permanent member of that union; and
f)a letter in Bengali without a translation.
Tribunal
The applicant appeared before the Tribunal on 14 March 2011 and made the following additional claims:
a)he joined the BNP in 1990 when he was in Year 9;
b)he became the secretary for the BNP in Fatickchari in 1993 and still held the position but someone was maintaining the position for him whilst he was not in Bangladesh. This was the only position he had held. After the Tribunal put to him that the letter from the President of the Fatickchari Upazilla Committee of the BNP he had submitted stated that he had been joint secretary of the Fatickchari Upazilla Committee and then the general secretary of the Dharmapur Union Committee in the Bangladesh Nationalist Chharta Dal, the applicant said that he may have made a mistake when he said that the only position he had held was that of secretary for the BNP in Fatickchari;
c)the Chhatra Dal and the BNP are the same;
d)in 1994 when he was attacked by the Awami League, he did not report the matter to the police because it was just a regular incident in Bangladesh and it took a long time for the police to come to his village. He had not gone to the police after he was discharged from hospital because he was given an “ultimatum”. He believed that the people who had taken him to the hospital or his father had reported the matter to the police but he did not remember doing so. He had a scar resulting from his injury. Although the BNP was in power in Bangladesh at that time, the Awami League was influential in his area;
e)when a warrant was issued for his arrest in January 1994, he was very careful as he was fearful for his life. The authorities were unable to arrest him as they could not find him because, even though he had still been in the village and attending college, he was not staying at his home;
f)he left his home in November 1994 and lived in Dhaka for two years before leaving Bangladesh. He had not had any problems in Dhaka;
g)the untranslated letter he provided to the department was a letter dated 10 January 2008 sent to him by the RAB saying an “unknown businessman” called [X] had told the RAB that the applicant had asked for 200,000 taka from him. The RAB gave him the letter when they arrested him and told him that he had to repay the money within a week. He left his village but stayed in Bangladesh until March 2008 and nothing happened to him;
h)on the occasions that he returned to Bangladesh he faced problems and had not been able to return to his village. He went back to Bangladesh in April 2009 because his wife was pregnant. After the baby had been delivered he sent his wife and the child to his village and left Bangladesh in July 2009;
i)he would have no security if he returned to Bangladesh. Most of the BNP leaders were in gaol;
j)he did not know everything that was in the “First Information Report” because it was very long and was submitted by his political opponents; and
k)he had not paid any money for the documents he submitted to the department. The documents were genuine and true.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons.
For the following reasons the Tribunal concluded that the applicant was not telling the truth about his claimed involvement with the BNP and the problems he claimed he had had as a result of that involvement:
a)the Tribunal found that it was very unlikely that the applicant would have made a mistake in saying that the only position he had held was that of secretary of the BNP in Fatickchari. The Tribunal also noted that the Chhatra Dal and the BNP are different organisations, the Chhatra Dal being the student wing of the BNP with its own office bearers;
b)the Tribunal considered that it would have been easy for the authorities to arrest the applicant if his claims that there was an arrest warrant issued against him in January 1994 were true because he had stayed in his village until the end of 1994, and continued attending college, thereby giving the authorities a year in which to arrest him;
c)the Tribunal noted that the applicant had spent two years in Dhaka and not had any problems there. It further noted that the 10 January 2008 letter from the RAB had given the applicant a week to repay the money he allegedly owed but he remained in Bangladesh until 28 March 2008 and nothing happened to him; and
d)the Tribunal considered that the fact that the applicant returned repeatedly to Bangladesh and stayed there for months at a time cast doubt on his claimed fear of persecution if he returned to Bangladesh. The Tribunal considered that if the applicant had been facing problems and feared for his life as he claimed, it was difficult to accept that he would have repeatedly returned to Bangladesh for periods of months at a time as he did.
The Tribunal did not accept that what was said in the documents produced by the applicant was true. It concluded that the documents produced to the department were false and gave them no weight for the following reasons:
a)the Tribunal considered that the applicant’s evidence that he had only held the position of the secretary of the BNP in Fatickchari cast doubt on whether the letters purportedly from the President of the Fatickchari Upazilla Committee of the BNP and from a lawyer in Chittagong were genuine;
b)the Tribunal found it difficult to believe that the documents produced by the applicant in relation to false charges he claimed were brought against him were genuine because they suggested that a warrant was issued for his arrest on 1 January 1994 but the applicant said that he remained in his village attending college until the end of 1994 without being arrested. Further they showed that he belonged to the Islami Chhatra Shibir not the Chhatra Dal. The Tribunal found that there was no obvious reason for the applicant’s political opponents to identify him as belonging to the Islami Chhatra Shibir rather than the Chhatra Dal when they were seeking to implicate him in a false case; and
c)the Tribunal referred to information available to it indicating that forged or fraudulently obtained documents were readily available in Bangladesh and that, for a fee, lawyers would supply a letter such as the one the applicant supplied to the Minister’s department. The information further indicated that it was common for political party membership confirmation letters to be issued even if the information was incorrect and genuine medical certificates containing incorrect information could also be issued. The Tribunal did not consider it necessary to make any inquiries in Bangladesh because the applicant himself contradicted what was said in the documents.
The Tribunal did not accept that the applicant was involved in the BNP or Chhatra Dal in Bangladesh as he claimed. It did not accept that false charges were brought against him in 1993 or that a warrant was issued for his arrest on 1 January 1994. The Tribunal did not accept that the applicant was harassed or threatened by the Awami League or that they attacked and injured him on 20 December 1994. The Tribunal accepted that the applicant had some scars but did not accept that they were caused in the circumstances or for the reasons he described. The Tribunal did not accept that when the caretaker government came into power false claims were lodged against the applicant relating to extortion and false tendering or that the applicant was arrested by the RAB on 10 January 2008 and accused of involvement in corruption because of his claimed support for the BNP. The Tribunal did not accept that there was a real chance that the applicant would be persecuted for reasons of his real or perceived political opinion if he returned to Bangladesh then or in the reasonably foreseeable future.
Principal application
As already described, in his originating application the applicant sought an extension of time to bring these proceedings. In the application filed on 20 June 2011 he stated:
1.I was sick and due to illness it was impossible for me to make application within the prescribed timeframe.
2.It was completely beyond my control and unintentional delay.
3.If I have not given the opportunity it would be a denial of natural justice.
In the originating application the following allegations were made in support of the applicant’s claim for substantive relief:
1.The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction for its failure to take into consideration my situation and biased by the writing of Department of Immigration and Citizenship.
2.The Tribunal exceeds its jurisdiction or constructively failed to exercise its jurisdiction or denied procedural fairness by the act that the tribunal failed to enable me to have an opportunity to submit my explanations on persecution issues. If I would be given the opportunity it could have led to a different decision by the Tribunal.
3.The Tribunal denied the natural justice in determining the fear of persecution on the basis of my political belief and did not allow me to give information regarding my case.
4.I have been given no chance to defend myself and thus the tribunal was biased by the decision of the Department of Immigration and Citizenship (DIAC).
At the hearing of this application the applicant also submitted that the Tribunal erred because it had failed to take account of a letter which, although written in Bengali, had been partially translated to the Tribunal at its hearing with the applicant. The applicant said that he received the letter from the “battalion” and it accused him of having taken 200,000 taka from [X]. It demanded that the money be returned within a week or he would be shot. The applicant said that although he wished the Court to consider the four grounds set out in his initiating application, his main complaint concerned the Tribunal’s failure to consider that letter.
In his affidavit filed with the initiating application the applicant made further allegations. Although the applicant did not seek to rely on what he said in that affidavit, I have nevertheless considered its contents. Even so, I have not identified in it a ground which would justify the Tribunal’s decision being set aside.
Application for extension of time
Section 477 of the Migration Act 1958 (“Act”) provides the time limit which applies to proceedings for judicial review of decisions of the Tribunal in respect of which this Court has jurisdiction. It relevantly provides:
477Time limits on applications to the Federal Magistrates Court
(1)An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court’s original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.
(2)The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:
(a)an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and
(b)the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.
(3) In this section:
date of the migration decision means:
(a)…
(b)in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); …
The Tribunal’s decision was dated 19 April 2011 which means that the applicant had until 24 May 2011 to commence these proceedings. However, the application was not filed until 20 June 2011 and was thus out of time.
The applicant made a written application for an extension of time by including such a request in his initiating application. That application also specified why he said it was in the interests of the administration of justice for time to be extended. Consequently, the initial criteria for the granting of an extension of time have been satisfied.
The next matter to be considered is whether it is in the interests of the administration of justice to grant an extension of time. Although the matters which may be relevant to this consideration are not confined, in the circumstances of this case I consider the relevant questions to be whether the applicant has a satisfactory explanation for the delay in commencing these proceedings and whether the substantive allegations made in the principal application have reasonable prospects of success.
Satisfactory explanation
In his application commencing the proceedings the applicant set out the following as the grounds for his application for an extension of time:
1.I was sick and due to illness it was impossible for me to make application within the prescribed timeframe.
2.It was completely beyond my control and unintentional delay.
3.If I have not given the opportunity it would be a denial of natural justice.
At the hearing of the present application in a case the applicant said that the commencement of the proceedings had been delayed because he had not known how to make an application. He said he had to find out how to go about things and that was why he had been delayed. He also said that on seven or eight occasions he had gone to Kogarah Local Court to have his supporting affidavit witnessed. He said that he would arrive late at Kogarah Local Court and the person who could witness his affidavit would be gone. He also said that he had been told that he had unlimited time.
When questioned concerning the different explanations given in the initiating application and in his evidence, the applicant said that both had been a cause of the delay.
I find the applicant’s evidence on the reasons for the delay in bringing the proceedings to be unconvincing. I cannot determine what the real reason for the delay was and, in those circumstances, I cannot conclude that the applicant has provided a satisfactory explanation for that delay.
Merits of substantive application
The next matter to consider is whether the substantive application has reasonable prospects of success.
The first element of the first allegation in the substantive application is that the Tribunal failed to consider the applicant’s situation. The Tribunal’s reasons, as summarised above, disclose that it did consider the applicant’s allegations but did not believe them. Without an accepted factual basis for the applicant’s claim to have a well-founded fear of persecution for a Convention reason, there was no relevant “situation” for the Tribunal to consider.
The second element of the first ground of the initiating application was that the Tribunal was “biased by the writing of Department of Immigration and Citizenship”. No particulars of this allegation were supplied and the applicant made no submissions in support of it. The implication in the allegation is that the Tribunal was, in some way, influenced by the decision of the delegate. However, as the summary of the Tribunal’s decision record set out earlier in these reasons demonstrates, the Tribunal undertook a detailed consideration of the applicant’s claims and reached reasoned conclusions in respect of them. That decision record does not support a finding of bias on the Tribunal’s part, whether actual or apprehended, and there is no other evidence before the Court which is relevant to this allegation. I conclude that the allegation of bias is not made out.
The second allegation in the initiating application is expressed in terms of a denial of procedural fairness. The Tribunal’s obligations to provide procedural fairness are codified by s.422B of the Act in the provisions of div.4 of pt.7, which include ss.424A and 425. The second allegation in the application implies a breach of either or both of those sections. They relevantly provide:
424A Information and invitation given in writing by Tribunal
(1) Subject to subsections (2A) and (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and
(c) invite the applicant to comment on or respond to it.
…
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application for review; or
(ba) that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or
(c) that is non-disclosable information.
…
425 Tribunal must invite applicant to appear
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. …
Again, the applicant has provided no detail which would give this allegation particular substance. Specifically, he has not identified what evidence or submissions he was not allowed to advance or which issues he was prevented from addressing. The applicant was given the opportunity to appear before the Tribunal to give evidence and present arguments and he accepted that invitation. The Tribunal rejected as untruthful the applicant’s claims to have been involved in the BNP, together with the difficulties alleged to have flown from that involvement. The Tribunal did so based on contradictions in the applicant’s evidence and the other matters referred to above at [20] and [21]. During the course of its hearing the Tribunal put to the applicant that his evidence cast doubt on whether he was telling the truth. In particular, the Tribunal recorded at para.60 its decision:
I put to the applicant that he kept contradicting himself and he did not appear to know what was in the documents he had produced … I put to him that this might lead me to believe that he was not telling the truth.
and at para.68:
I put to the applicant that I did not think he was telling the truth about his involvement in the BNP or the problems he claimed to have had and that he had produced false documents to the Department.
In the circumstances, the Tribunal put the applicant sufficiently on notice that the credibility of his claims to political involvement in Bangladesh might be decisive to the outcome of the review: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 228 CLR 152 at 165-166 [47]. I conclude that the Tribunal discharged the obligations which s.425 imposed on it.
As to s.424A, the Tribunal’s decision was based on its assessment of the evidence which the applicant himself had supplied, coupled with country information. Section 424A does not oblige the Tribunal to notify an applicant of such information: s.424A(3); SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190.
The third ground of the application alleges a denial of procedural fairness by reason that the Tribunal did not allow the applicant to give information regarding his case. For the reasons discussed in relation to the second ground of the application, this allegation is not made out.
The fourth ground of the application alleges that the applicant was denied a chance “to defend” himself and that the Tribunal was biased by the decision of the Minister’s department. These allegations do not succeed for the reasons given earlier in relation to the first and second allegations of the application. Further, to the extent that the applicant perceived the Tribunal to be an adversarial forum, he is mistaken. The Tribunal’s review was an inquisitorial proceeding in which he had the practical obligation to satisfy it that he met the criteria for the grant of a protection visa. There was no opposing case which he had to address or against which he needed “to defend” himself. The applicant was unsuccessful before the Tribunal because he did not satisfy it that he had a well-founded fear of persecution for a Convention reason, not because the Minister or his department had mounted a case against him which he needed to defend.
The final allegation made by the applicant was the one he raised in his oral submissions to the Court; that the Tribunal had failed to take account of a letter which, although written in Bengali, had been partially translated to it at its hearing. The applicant submitted that the letter in question had not been referred to in the Tribunal’s summary of evidence but, having made that submission, declined on more than one occasion to confirm that he was saying that the Tribunal’s summary of evidence was incorrect.
The applicant did not bring a copy of the letter to court but his description of its contents was sufficiently clear to conclude that, contrary to his assertion, the Tribunal had considered it. In its summary of the evidence before it, the Tribunal said at paras.39 and 40:
I referred to the documents which the applicant had produced to the Department and in particular to the letter in Bengali without a translation … The applicant said that during the caretaker government the RAB had sent him a letter saying that an unknown businessman whose name was [X] had told the RAB that he (the applicant) had asked for two lakhs (200,000) taka from him.
I noted that the letter was not on any sort of official letterhead: it was just typed. The applicant said that he had no idea about that: they had sent him this letter. I asked him how he knew it was from the RAB at all. The applicant said that on the top of the letter it said that it was from the RAB. I put to him that anyone could have typed this. The applicant said that he had submitted the letter he had received and that he did not know about other things about this letter. He said that they had arrested him at 9.00am in the morning and at 3.30pm they had returned him. He said that the letter was dated 10 January 2008 and that they had given the letter to him when they had arrested him at his home. He said that they had told him to return this money but he had not had any contact with them after this. He said that then he had left his home.
At para.78 of its decision record under the heading “Findings and Reasons” the Tribunal also said:
The applicant said at the hearing before me that the letter in Bengali without a translation which he had given the Department was a letter from the RAB which he had been given on 10 January 2008 when by his account they had arrested him and released him on the same day. He said that the letter stated that a businessman named [X] had told the RAB that the applicant had asked for 200,000 takas from him and he said that the RAB had given him an ultimatum that he had to return this money within one week. The applicant said that he had left his home but he conceded that he had remained in Bangladesh until 28 March 2008 and that nothing had happened to him.
As the Tribunal plainly considered the letter which the applicant has alleged it did not, the additional allegation made at the hearing of this application is not made out.
For the above reasons, the allegations made by the applicant in his application and at the hearing in these proceedings do not demonstrate that the Tribunal erred. As a result, even if time for the commencement of the proceedings were to be extended, the proceedings would not have reasonable prospects of success. As a result, it would not be in the interests of the administration of justice to extend time to commence the proceedings.
Conclusion
I have found that the applicant’s substantive allegations do not have reasonable prospects of success and that it would not be in the interests of the administration of justice to extend time for the commencement of these proceedings. I have also found that the applicant’s explanation for his failure to attend the hearing listed on 7 February 2012 was not satisfactory. I therefore conclude that I should not exercise my discretion to set aside the order dismissing the proceedings.
Consequently, the applicant’s application in a case filed on 19 March 2012 will be dismissed.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Cameron FM
Date: 16 May 2012