FEDERAL COURT OF AUSTRALIA

SZDPV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 446

SZDPV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1953 OF 2004

EMMETT J

21 MARCH 2005

SYDNEY

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT

THE COURT ORDERS THAT:

1.         The appeal be dismissed;

2.         The appellant pay the respondent’s costs for the appeal.

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

ON APPEAL FROM A JUDGMENT OF THE FEDERAL MAGISTRATES COURT

REASONS FOR JUDGMENT

1                     The appellant is a national of Bangladesh.  He arrived in Australia on 30 July 1989.  On 17 January 1991, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 8 January 1992, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs (‘the Minister’), as the then Minister was known, refused to grant a protection visa.  On 9 August 1993, the appellant sought a review of that decision.  On 24 June 1996, the Refugee Review Tribunal (‘the Tribunal’) decided that the appellant’s application was lodged out of the prescribed statutory time and that, therefore, the Tribunal had no jurisdiction to hear the substantive issue.  On 1 June 1998, the Federal Court of Australia set aside that decision and remitted the matter to the Tribunal, to be heard and determined according to law.

2                     The matter came before the Tribunal, differently constituted and, on 15 October 1998, the Tribunal affirmed the decision not to grant a protection visa.  On 21 May 2004, the appellant filed an application to the Federal Magistrates Court, seeking judicial review of the Tribunal’s decision of 15 October 1998.  On 7 December 2004, the Federal Magistrates Court ordered that the application be dismissed and that the appellant pay the Minister’s costs, in the sum of $3,000.  By notice of appeal, filed on 23 December 2004, the appellant appeals to this Court, from the orders of the Federal Magistrates Court.  The Chief Justice has directed that the appeal be heard by a single judge. 

3                     The grounds of appeal, in the notice of appeal, are unhelpful.  They are as follows:

(1)        the single judge of the Federal Magistrates Court, in the judgment delivered on 7 December 2004, failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth);

(2)        the grounds and relief is very much similar with a recent High Court judgment Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal (2002) HCA 30 of 8 August 2002.

No other particulars have been furnished. 

4                     The appellant appeared without legal representation.  Notwithstanding the appellant’s ability to communicate quite well in English, he had the assistance of an interpreter.  On 18 March 2005, the appellant filed written submissions, running to some six pages.  The appellant indicated that he had not written the submissions himself, but had been assisted by a friend.  Despite the fact that the submissions appear to deal with matters that go beyond the grounds of appeal, the Minister took no particular objection and addressed the issues raised by the written submissions.  Having regard to the fact that the appellant appears without legal assistance, I propose to say something more about the issues than would otherwise be justified in the absence of particulars.

5                     The Tribunal found that the appellant is a citizen of Bangladesh, as he claimed.  The Tribunal had no reason to disbelieve the appellant’s claim that he participated, as a student, in the 1971 war against Pakistan, which led to his country’s independence.  Nor did the Tribunal doubt the appellant’s claim that he had joined an organisation called the Bangladesh Freedom Fighters Trust, of which General Ershad was the chairman.  The Tribunal accepted that, in 1974, the appellant clashed with the interests of Mr Hamid, the present deputy speaker in the Kishoregonj district.  The Tribunal also accepted that the appellant was either beaten up, or even detained, as he alleged at the hearing, despite the omission of such an important allegation in the details of the appellant’s original protection visa application.

6                     However, the Tribunal considered that, after that, nothing very serious happened to the appellant.  The Tribunal found it difficult to see how the Awami league, after its government was violently overthrown in 1975, could continue to harass the appellant.  The appellant left Bangladesh in 1979, not because he was being persecuted, but because he finally had a job.  In 1986, according to the Tribunal’s findings, the appellant was back in Bangladesh and again found himself without employment.  He told the Tribunal that he had a family and the obligation to support them, so once again, he went abroad out of economic necessity.  This time he came to Australia.

7                     The appellant conceded that in 1989 there were no political reasons for him to leave Bangladesh.  The Tribunal found that in 1990, the government of the Jatiyo party, led by General Ershad, which the appellant had supported, fell.  In February 1991, the Bangladesh National Party (‘BNP’) government took power, as the result of elections.  The appellant alleged that, during that interregnum, members of the Jatiyo party were being persecuted.  He claimed that a warrant was issued for his arrest.

8                     The Tribunal observed that, whatever may have been the position in the immediate aftermath of General Ershad’s resignation, the Jatiyo party remained a legal party, able to take part in free and fair elections, and had become a member of the currently ruling coalition, headed by the Awami league.  The Tribunal observed that General Ershad had been released from prison, although the charges against him may not have been dismissed.  The fact that there may now be dissension between the members of the Jatiyo party did not, in the Tribunal’s view, alter that position.  The Tribunal did not accept the appellant’s evidence about the issue of a warrant for his arrest.  No documentary evidence was produced, notwithstanding that the allegation was first made in 1991.

9                     The appellant apparently claimed that the warrant for his arrest was referred to in letters from relatives.  In his submission of 1991, the appellant said that he had letters from his family in Bangladesh, detailing instances of harassment, which he intended to have translated for the purposes of his application for a protection visa.  However, no such evidence was produced at the Tribunal hearing many years later.  The appellant stated, as the reason, that his letters contained material that was private.

10                  The Tribunal, in any event, considered that the appellant’s story was inherently improbable.  The events, in respect of which the warrant was alleged to have issued, occurred in 1974, yet the appellant continued to reside in Bangladesh until 1979.  During this period, despite the overthrow of the Awami League in 1975, nothing much changed.  By 1991 the appellant had been in Australia for 18 months and was hardly a person of concern to Mr Hamid who, as a supporter of the Awami League, did not hold power in the then BNP government.

11                  At the hearing before the Tribunal, the appellant claimed that he had been an executive member of the committee of the Jatiyo Party from 1987 to 1988, although no reference was made to that position in his original application.  The Tribunal did not accept that the appellant’s claim that he could be described as one of the prominent Jatiyo Party members, who were persecuted between 1991 and 1996.  At the hearing, the appellant produced a certificate, dated 16 December 1993, that stated that the appellant is a member of ‘the executive committee’.  The Tribunal found that difficult to reconcile with the fact that the appellant has been living in Australia since 1989.

12                  The appellant said that the certificate was dated incorrectly and that he had collected it in 1993 as he needed it for his case before the Tribunal to prove his membership of the Jatiyo Party.  However, the document was not filed and the Tribunal member was only able to inspect it briefly as the appellant said he wanted to keep it.  For that reason the Tribunal did not accept the document as authentic.

13                  The Tribunal observed that Bangladesh may well be one of the poorest countries on Earth and that it is beset by chronic unemployment, corruption and natural disasters.  It observed that Bangladesh offers little opportunity to a conscientious husband and father, such as the appellant, to earn a living and support his family.  However, the Tribunal observed that none of that gives rise to a claim to refugee status under the Refugees Convention.  After considering the evidence as a whole, the Tribunal was not satisfied that the appellant is a person to whom Australia has protection obligations within the meaning of s 36 of the Migration Act.

14                  The reasons of the Federal Magistrates Court deal in some detail with the submissions advanced by the appellant to that Court.  On 27 August 2004, the Federal Magistrates Court ordered the appellant to file and serve, by 4 November 2004, an amended application setting out full particularised grounds, together with any affidavit material to be relied upon.  The orders of 27 August 2004 also required the appellant to file and serve submissions seven days prior to the hearing date.  None of the orders were complied with. 

15                  The appellant was referred to a panel legal adviser, pursuant to the legal advice scheme of the Federal Magistrates Court.  The appellant confirmed that he had consulted the panel lawyer on 26 October 2004 and was given advice on 4 November 2004.  Nevertheless, the appellant appeared without legal assistance before the Federal Magistrates Court.

16                  The Federal Magistrates Court analysed its task as being to consider whether or not the decision of the Tribunal was a privative clause decision within s 474 of the Act.  The six grounds of the application to the Federal Magistrates Court were not in any way particularised.  Grounds one, two and three were summarised by the Federal Magistrates Court as constituting a complaint of failure to accord procedural fairness and failure to comply with common law principles of natural justice.  Reference was made to s 424A of the Act which, however, did not come into effect until 1 June 1999, some eight months after the decision in question.

17                  The Federal Magistrates Court dealt with submissions made by the appellant on the basis of the decision of the High Court in Muin and Lie.  The Court observed that there is nothing in the material before it to show that the appellant was misled by any misrepresentations by the Tribunal in relation to the information that it had before it.  There was no evidence to take the place of the agreed facts that were before the High Court in the cases of Muin and Lie.  There was nothing before the Federal Magistrate to show that the appellant was denied the opportunity to respond to specific material that was adverse to his case, as was the assumed position before the High Court. 

18                  Grounds four and five were summarised by the primary judge as asserting that there was no rational foundation for the Tribunal’s findings.  Whether or not that would be a ground upon which the decision of the Tribunal could be reviewed, the Federal Magistrates Court concluded that there was no illogical or unreasonable element in how the Tribunal reached its conclusion.  I agree with that assessment from my reading of the Tribunal’s reasons.

19                  Ground six before the Federal Magistrates Court asserted that the Tribunal fell into error in assessing whether or not the state was able to offer adequate protection to the appellant if he returned.   The Tribunal did not deal with that question.  The primary judge observed that it was unnecessary for the Tribunal to consider that question because the Tribunal found that none of the appellant’s claims gave rise to a claim to refugee status.  That is to say, the Tribunal found, as a matter of fact, that the appellant did not have a well-founded fear of persecution for a Convention reason.

20                  The Federal Magistrates Court also dealt with a complaint made by the appellant concerning his family letters.  He claimed before the Federal Magistrates Court that he submitted that evidence to the Tribunal, and that the Tribunal did not refer to them.  However, as I have indicated, the Tribunal expressly referred to them in its reasons.  The Federal Magistrate observed that the Tribunal clearly did consider the letters.  Although there was a discrepancy between the Tribunal record and its reasons on the one hand, and the claim made by the appellant at the hearing on the other, there was no evidence put before the Tribunal by the appellant as to those matters.  The Federal Magistrates Court concluded that there was no error on the part of the Tribunal, let alone jurisdictional error. 

21                  The written submissions filed on behalf of the appellant in this Court, for the most part, raise matters going to the factual findings of the Tribunal.  References were made to Muin and Lie’s case, but there is no basis upon which the principles stated by the High Court in that case are applicable to this case.  There was no evidence before the Federal Magistrates Court that the appellant was in any way misled by any communication from the Tribunal. 

22                  Two other matters were raised in the written submissions.  The first was an alleged failure to follow proper procedures as required by the Act.  The appellant was unable to point to any procedures of the Act that were not followed.  Secondly, there was confusion on the question of further documents that the appellant wished to produce.  I have already dealt with the question of documents that the appellant claimed that he was denied the opportunity to produce.

23                  I do not consider that there was any error on the part of the decision of the Federal Magistrates Court in dealing with the application for review of the Tribunal’s decision.  It follows, in my opinion, that the appeal should be dismissed.

Associate:

Dated:              18 April 2005