FEDERAL COURT OF AUSTRALIA

Applicant S1746 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1591

MIGRATION – application for leave to appeal – decision in 1999 – ground not raised in previous appeal from same decision – allegation of factual error on the part of the Tribunal – factual error if it existed is of no consequence – appeal has no prospects of success

Migration Act 1958 (Cth)

Federal Court Rules O 52 r 15(2)

Alam v Minister for Immigration and Multicultural Affairs [1999] FCA 1630

Jess v Scott (1986) 12 FCR 187

Minister for Immigration & Ethnic  Affairs v Wu Shan Liang (1996) 185 CLR 259

Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601

N1202/01A v Minister for Immigration & Multicultural Affairs (2002) 68 ALD 21

NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263

APPLICANT S1746 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD1387 OF 2004

BENNETT J

9 DECEMBER 2004

SYDNEY

THE COURT ORDERS THAT:

1.         The application is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an application for an extension of time to file and serve a notice of appeal from a judgment of Einfeld J of 17 November 1999: Alam v Minister for Immigration and Multicultural Affairs [1999] FCA 1630 (‘Alam’).  In Alam, the applicant appealed a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 13 July 1999 affirming the decision of the delegate not to grant the applicant a protection visa.  The Tribunal had concluded that the applicant, a citizen of Bangladesh who claimed a well-founded fear of persecution if he returned to Bangladesh for reason of his political opinion as a supporter and member of the Bangladeshi Nationalist Party (‘BNP’), did not have a high profile in political matters in Bangladesh.  The Tribunal did not accept that he was at risk of harm by reason of false charges, or that his cousin, who was allegedly powerful in the Jatiya Party, was still powerful or would seek to harm him.

2                     After observing that the applicant essentially sought to argue that the Tribunal made factual errors, Einfeld J said:

The only feasible question of law raised in the application was that the hearing before the Tribunal was conducted with the assistance of an interpreter who, although speaking Bengali, was actually an Indian and not a Bangladeshi.

Justice Einfeld considered this question as well as others raised by the applicant.  Included in his Honour’s reasons was this observation:

So far as the substance of the case is concerned, the corrections which the applicant seeks to make to the statutory declaration by way of his recent affidavit seem to me to have nothing to do with the ultimate decision at all.  There may well have been a mistake in the statutory declaration and possibly in the evidence which the applicant gave about the involvement of a relative in one of the political parties in Bangladesh, but as I see it, it had little to do with the ultimate decision of the Tribunal.

His Honour said that he had carefully read the Tribunal’s decision and could find no fault in the way in which the Tribunal approached its task, nor any legal or other error in the conclusions.  He concluded that the case ‘has no merit at all and never had any chance of succeeding’ and dismissed the application with costs.

3                     No notice of appeal was filed in respect of the judgment of Einfeld J.

4                     In the hearing of the application before me, the applicant was represented by Mr Zipser of counsel.  I was informed that the application for leave to appeal from the decision of Einfeld J did not rest on any allegation of error on the part of his Honour. 

Chronology of the applicant’s challenge to the decision of the Tribunal

5                     It is important to set out the relevant dates of the applicant’s challenges to the decision of the Tribunal of 13 July 1999.

6                     On 9 August 1999 the applicant filed an application for review pursuant to s 476 (as it then was) of the Migration Act 1958 (Cth) (‘the Act’) in the New South Wales District Registry of this Court in relation to the decision of the Tribunal made 13 July 1999.

7                     On 17 November 1999 Einfeld J made orders dismissing the application with costs.

8                     On or about 19 December 1999 the applicant became a member of the Muin/Lie class action (Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601).  Pursuant to orders of Gaudron J of 25 November 2002, the applicant, through his solicitors, filed an affidavit on 30 May 2003 in the High Court annexing a draft order nisi, which was remitted instanter to the New South Wales District Registry of the Federal Court.  The draft order nisi sought the issue of constitutional writs in relation to the decision of the Tribunal made 13 July 1999.

9                     On 30 April 2004 Emmett J dismissed the application. His Honour made no order as to costs.

10                  On 17 May 2004 the applicant filed an application for review, pursuant to s 483A of the Act in the Federal Magistrates Court at Sydney, of the decision of the Tribunal made 13 July 1999.

11                  On 25 August 2004 the respondent filed an application in the Federal Magistrates Court that the proceedings be dismissed pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 (‘the Rules’).  The respondent’s application was listed for hearing before Raphael FM at 9.30 am on 1 September 2004.

12                  On 31 August 2004 the applicant discontinued his application in the Federal Magistrates Court and the hearing on 1 September 2004 was vacated.

13                  On 24 September 2004 the application was filed in this Court.

Grounds of the application for an extension of time

14                  Mr Zipser informed me that the applicant wished to advance grounds in [11] – [15] of his affidavit, sworn on 19 September 2004.  Those grounds are set out as follows:

11.              The RRT breached the rules of procedural fairness by failing to give me an opportunity to comment on information, which the RRT relied on.

12.              I have a real fear of persecution upon returning to Bangladesh, which was not considered by the Tribunal.

13.              The Tribunal decision was based on incorrect assertions in relation to systematic persecution towards leaders and activists of the political opponents.

14.              The Tribunal did not provide an opportunity to comment of materials, which the Tribunal relied on its decision.  Thus the Tribunal made an error in term of procedural fairness in relation to this case.

15.              There was miscommunication between the Tribunal and the Interpreter and particularly the interpreter made a number of errors in interpreting this case.  As such I was deprived of receiving natural justice.

These grounds are said to be reflected in grounds 1- 4 of the draft notice of appeal:

1.                  The Refugee Review Tribunal (“the Tribunal”) breached the rules of procedural fairness by failing to give the appellant an opportunity to comment on information, which the Tribunal relied on.

2.                  The Tribunal decision was based on incorrect assertions in relation to systematic persecution towards leaders and activists of the political opponents.

3.                  The Tribunal did not provide an opportunity to comment on materials, which the Tribunal relied on its decision.  Thus the Tribunal made an error in terms of procedural fairness in relation to the case.

4.                  There was a miscommunication between the Tribunal and interpreter and particularly the interpreter made a number of errors in interpreting the case.  On this basis, the appellant was deprived of receiving natural justice.

15                  Mr Zipser pointed out that these grounds were not pressed in his written submissions.  In any event, I note that the first ground is not particularised and nothing has been advanced to establish a breach of the rules of procedural fairness.  The same comment can be made in respect of the third ground.  Further, I note that the Tribunal decision refers to exchanges between the applicant and his adviser and the Tribunal in respect of a number of documents.

16                  The second ground seems to relate to findings of fact or merits review, which is not open to this Court: Minister for Immigration & Ethnic  Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

17                  As to the fourth ground, the respondent relied upon s 476(2)(a) of the Actin the old Part 8 of the Act pursuant to which the application to Einfeld J was brought.  That section provides, relevantly:

(2)       The following are not grounds upon which an application may be made under subsection (1):

(a)               that a breach of the rules of natural justice occurred in connection with the making of the decision…

18                  The respondent submits that, accordingly, ground 4 was not available to his Honour and could not, therefore, be the subject of claimed error on his part.  In any event, Einfeld J considered the applicant’s claims before him in respect of the Indian, not Bengali, interpreter at [2] – [6]:

2.         The only feasible question of law raised in the application was that the hearing before the Tribunal was conducted with the assistance of an interpreter who, although speaking Bengali, was actually an Indian and not a Bangladeshi.  The inference is partially dialectic and partially incompetence.  The applicant appears to be claiming that he did not understand some questions which were asked of him and as a consequence answers were recorded which he did not intend.  The Tribunal’s decision was therefore made, so it was generally implied, on evidence which was not his own.

3.         If such a claim could be made out and the matters involved were material to the decision, there may very well be a reviewable question of law and the applicant's case might at least advance toward a result of this review that would require a further hearing.  However, I have carefully read the applicant's statutory declaration dated 27 March 1997 which was presented to and read by the Tribunal.  Since that time the applicant made an affidavit dated 10 November 1999 in which he sought to explain some aspects of the statutory declaration which he said were erroneous, and to further explain certain facts which he claimed were relevant to his case. 

4.         I have considered the matters that have been raised in that connection in the context of the Tribunal's decision, including the applicant’s reference in the affidavit to the problems that he claims existed in respect of the interpreter.  It seems likely to be true that there were some problems with the interpreter.  Indeed, the respondent does not take issue with the fact that the problem pointed to by the applicant did in fact exist.

5.         The applicant appears to rely in this regard upon the competence of the interpreter in terms of being able to translate the Bangladeshi version of Bengali.  He said that he was compelled to accept this inadequate interpreter, but the facts appear to show that that is not correct.  At the hearing of the Tribunal he was assisted by a person who spoke Bengali although also apparently not a Bangladeshi.  Because the applicant’s adviser or assistant could draw to the Tribunal's attention any language problems, there was adequate protection for any misinterpretations that might arise.  No real suggestion has been made that the interpreter was biased against the applicant and there is in any event no evidence of any such bias.  Certainly there could be no problems with the applicant’s own adviser.  If he had thought that the interpreter was deliberately or negligently misinterpreting significant evidence, it is likely that he would have spoken up and drawn the Tribunal's attention to it.

6.         There are questions that have been raised in some cases about the problem of competent interpretation and the way in which its absence might result in a judicial review, but it is not necessary to consider those cases in the present context because none of the potentially permissible circumstances exist.  There is nothing which I can see which would lead a court to believe that some manifest breach of the relevant provisions of the statute, in particular sections 425 and 476, have in some way been breached by what happened in this particular case.

19                  As pointed out by the respondent, the applicant does not suggest how his Honour’s treatment of this issue involves an error of law.

20                  It was said that a new ground, not before Einfeld J, would be agitated, if leave to appeal were granted, namely that the Tribunal erred in a factual finding made in reference to a statutory declaration of the applicant (‘the statutory declaration’).  That ground was framed in the draft notice of appeal as follows:

The Tribunal found that the appellant claimed in a statutory declaration that his cousin was involved in the Jatiya Party in 1982.  The appellant did not make this claim.  On this basis, the Tribunal made a mistake of fact.  In the circumstances of the case, the mistake of fact gave rise to jurisdictional error by the Tribunal.

21                  The statutory declaration was referred to by Einfeld J but it was said by the applicant that no ground based on it was advanced before his Honour.

22                  In the statutory declaration, the applicant had said:

It is to be mentioned that another man named Mr Mahbubul Huq Dulon, one of the members of our family (son of my Uncle) is the Vice President of the Jatia Party established and headed by General Ershad.  It was he and Ershad who snatched away the power from the elected President Mr Justice Abdus Sattar through a military coup.  It happened in the year 1982.  This is the reason why I always have and still do to this day, have abhorrence for Mr Ershad (the Ex-President of Bangladesh).  It is hard for me to stand Mr Dolon who associated himself with the Jatia Party which is headed by Mr Ershad, who I know as a killer of democracy.  This Mr Dolon occasionally used to ask me to join the Jatia Party.  Each and every time I turned down his offer with hatred.  Dolon is now not only my political opponent but also my family foe.

23                  The asserted error is in respect of that part of the Tribunal’s reasons where it said:

In regard to the claims of enmity between him and his cousin it is clear that he has sought to exaggerate his cousin’s profile in the Jatiya Party.  His cousin was not [involved in] the Jatiya Party in 1982 as claimed in the first statutory declaration, nor did the party exist at that time.

24                  However, that paragraph should be read in context, as the Tribunal continued:

I do accept that his cousin held a significant position in the party but, by the Applicant’s own account his cousin’s health has deteriorated to such an extent that he is no longer active in the party.

Since I do not accept that the Applicant had a high profile in the BNP I do not accept that his cousin would have sought to harm him in any event.  However, this is even more certain now since his cousin is no longer active in that party.

25                  The jurisdictional error on the part of the Tribunal is said to be based on an error of fact, being the date when the applicant’s cousin was a member of the Jatiya Party.  The applicant relies on NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 (‘NABE’) as authority for the proposition that, if there is an error of fact which the decision maker took into account in making the decision, there was an irrelevant consideration that amounts to jurisdictional error.

26                  It is not in dispute that, pursuant to O 52 r 15(2) of the Federal Court Rules, the applicant must show that “special reasons” exist to be permitted to file and serve a notice of appeal out of the time provided in O 52 r 15(1).

27                  The applicant acknowledges that the principles enunciated in N1202/01A v Minister for Immigration & Multicultural Affairs (2002) 68 ALD 21 at [8]-[24] apply to an application for an extension of time.

28                  In explanation of the delay, the applicant points to his membership of the Muin/Lie class action, which commenced in December 1999 and was not resolved by the High Court until August 2002.  He then applied to the Federal Magistrates Court (May 2004 to August 2004).  The delay does represent a prolonged period, longer than the year said in Jess v Scott (1986) 12 FCR 187 at 195 to require ‘something very persuasive indeed to justify a grant of leave’.  No explanation for a failure to appeal has been advanced.

29                  The respondent submits that the choice to join a High Court class action rather than to pursue an appeal from the judgment of Einfeld J is consistent with a conscious choice to pursue an alternative remedy and that the applicant consulted solicitors for the purpose of joining the class action.

30                  In NABE the Full Court considered whether and to what extent a factual error on the part of the tribunal may evidence or constitute a failure to carry out its review function or otherwise amount to a failure of jurisdiction.  Their Honours said, at [53]:

It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision…An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact.

It is necessary to demonstrate that the Tribunal ‘so misunderstood the question it had to decide that its error constituted a jurisdictional error’(Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481 [35] per McHugh J).

31                  As the Full Court said in NABE at [63]:

It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error…Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome.

32                  Mr Zipser submits that the mistake of fact here was that the applicant did not claim in his statutory declaration that his cousin was involved in the Jatiya Party in 1982.  He does not explain how this ‘mistake of fact’ was tantamount to a failure to consider the applicant’s claim.  Before the Tribunal, the applicant did rely on his cousin’s membership of the Jatiya Party.  He relied upon his cousin’s action when the cousin and General Ershad ‘snatched away the power from the elected President’ in 1982.  In my opinion this gives rise to the clear inference that the cousin was a member of the Jatiya Party in 1982.  However, in any event, the factual mistake can only be categorised as minor.  It clearly was of no consequence to the outcome of the Tribunal’s decision.  The Tribunal accepted that the cousin held a significant position with the party but that his ‘health has deteriorated to such an extent that he is no longer active in the party’.

33                  Justice Einfeld made reference to a possible mistake in the statutory declaration and its relevance at [7]:

So far as the substance of the case is concerned, the corrections which the applicant seeks to make to the statutory declaration by way of his recent affidavit seem to me to have nothing to do with the ultimate decision at all.  There may well have been a mistake in the statutory declaration and possibly in the evidence which the applicant gave about the involvement of a relative in one of the political parties in Bangladesh, but as I see it, it had little to do with the ultimate decision of the Tribunal.

34                  With respect, I agree with his Honour’s conclusion.

35                  In any event, the Tribunal did not accept that the applicant had a high profile in the BNP and that was the basis of the applicant’s claim.

36                  I am of the view that the applicant has no prospect of success in an appeal based on this new argument, if it is a new argument.  The applicant has not demonstrated special reasons for the exercise of a discretion to extend the time for filing the notice of appeal.

37                  The application is dismissed with costs.

Associate:

Dated:              9 December 2004