FEDERAL COURT OF AUSTRALIA

SZCLP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1875

SZCLP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD1948 OF 2005

EMMETT J

14 DECEMBER 2005

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent’s costs of the appeal.

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

REASONS FOR JUDGMENT

1                     The appellant is a citizen of Bangladesh. He arrived in Australia on 3 October 2001. On 24 October 2001, he lodged an application for a protection (Class XA) visa under the Migration Act 1958 (‘the Act’). On 25 February 2003, a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 24 March 2003, the appellant applied to the second respondent, the Refugee Review Tribunal (‘the Tribunal’), for review of the delegate's decision. On 24 November 2003, the Tribunal affirmed the decision not to grant a protection visa. On 13 January 2004, 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.

2                     An amended application was apparently filed at some stage with the leave of the Federal Magistrates Court. That amended application is dated 21 June 2004. Following a hearing before the Federal Magistrates Court on 29 September 2005, that Court gave leave for the Tribunal to be joined as a respondent, ordered the application be dismissed and ordered the appellant to pay the Minister’s costs. By notice of appeal filed on 14 October 2005, the appellant now appeals to the Federal Court from the orders of the Federal Magistrates Court made on 29 September 2005. The Chief Justice has directed that the appeal be heard by a single judge.

3                     When the matter was called on for hearing today the appellant was unable to advance any submissions in support of his appeal. He simply asserted that the Tribunal did not consider his case properly and that he did not get due justice. He made the same complaint about the Federal Magistrates Court.

4                     The notice of appeal to this Court is quite unhelpful in terms of the grounds. The grounds of appeal are as follows:

‘(1) The single judge of the Federal Magistrates Court in his Honour’s judgment delivered on 29 September 2005 failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903.

(2) The Tribunal breached s 424A of [the Act].

(3) His Honour failed to find error of law in the RRT decision.

(4) I did not receive the copy of judgment yet. After receive the copy of judgment I will provide more grounds.

(5) Recent High Court judgment Plaintiff S157 of 2002 v The Commonwealth [2003] HCA 1 (4 February 2003).

(6) Recent Federal Court of Australia judgment SAAP v The Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 24, (18 May 2005).’

The appellant has provided no particulars of those grounds, which are a mixture of grounds of review of the Tribunal’s decision and mere assertion of error on the part of the Federal Magistrates Court.

5                     The Tribunal’s reasons recorded that the appellant claimed that, as an Awami League supporter and activist, he was attacked by political opponents and forced to flee Bangladesh because he feared harm from the Bangladesh National Party. He also claimed that his support for Taslima Nasrin, a prominent Bangladeshi writer, would cause him to be harmed by Muslim fanatics. The Tribunal found the applicant’s claims to be unconvincing, having taken into consideration the final submissions of his adviser at a hearing before the Tribunal. The Tribunal was not satisfied that the appellant had any association with the Awami League or that he was a supporter of Taslima Nasrin.

6                     The Tribunal found that the appellant had departed Bangladesh on the day of the national elections and prior to the results of the elections being known. The Tribunal considered that that was not the action of someone who has been deeply involved in a national election. The Tribunal found that the appellant’s claims had been fabricated. That conclusion was strengthened by the Tribunal’s observation that significant parts of the appellant’s claims reproduced verbatim the claims lodged by two other applicants before the Tribunal. The Tribunal found, on the basis of the evidence before it, that there was no real chance that the appellant would be persecuted in the reasonably foreseeable future for reason of his political opinion or his claimed secular outlook.

7                     It is not entirely clear whether the amended application to the Federal Magistrates Court was intended to provide cumulative grounds of review. The original application to the Federal Magistrates Court was completely lacking in particulars. It specified grounds as follows:

‘(1) The Tribunal did not take into account the court case against me in Bangladesh of a Convention based reason.

(2) RRT did not require the comment regarding the all of my claims.

(3) The Tribunal made his decision in bad faith.

(4) The Tribunal deprived me of the natural justice.

(5) The Tribunal denied the evidentiary proof of my claim.

(6) The Tribunal's decision did not reflect the material facts of my claim.

(7) The Tribunal has given a decision, which was preset in the back of its mind.

(8) The Tribunal mixed up many facts with this decision which affected the decision.

(9) The Tribunal concentrated in particular fact, while ignored many other facts in this condition.

(10) The Tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim.

(11) I was misunderstanding, due to this I lodged my judicial review application late.

(12) I will provide more details of grounds later.’

8                     The grounds specified in the amended application are as follows:

‘The RRT decision was effected to take into account a relevant consideration when it assessed weather [sic] the delegate of the Minister raised reasonable grounds for not granting a protection visa.

Particulars:

(a) the Tribunal to consider in assessing the chance of the applicant being arrested or persecuted on his return to Bangladesh based on the fact he was political activist in Bangladesh;

(b) the Tribunal’s satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.’

9                     Scarlett FM referred to an outline of submissions filed by the appellant that set out several grounds not referred to in the amended application. His Honour summarised those grounds as follows:

‘(1) The findings of the Tribunal showed actual bias on the part of the decision maker.

(2) The Tribunal did not follow the requirements of s 424A of [the Act].

(3) The Tribunal breached ss 414 and 427(1)(d) of [the Act].

(4) Without any investigation having been conducted, the decision cannot be regarded as a decision coming within the terms of s 422B of [the Act].

(5) Under s 430 of [the Act] an oral decision made by the Tribunal is only valid if that decision is positive.

(6) The Tribunal did not ask the Applicant for any comment about document fraud in breach of s 424(a) of [the Act].

(7) The court should listen to an audio tape of the proceedings.

(8) A Court may conduct judicial review of a privative clause decision under s 39B of the Judiciary Act 1908 if the decision complies with the four factors set out in R v Hickman; ex parte Fox and Clinton.

(9) The decision maker acted in bad faith.

(10) The court should have regard to the decision of the Federal Magistrates Court's decision in SZALU v The Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 264.

(11) The decision involved a breach of the rules of natural justice.’

10                  His Honour recorded that the appellant, in oral submissions, said that he could make any further comment about his submissions as he was not legally represented. The primary judge dealt with all of the grounds raised by the appellant and concluded that none of the grounds was made out. There is nothing on the face of his Honour’s reasons to suggest any error in the way in which his Honour dealt with the appellant’s submissions and grounds of review. In the absence of any submission on behalf of the appellant in support of the appeal and in the absence of any particulars of the bald assertions made in the notice of appeal, I am not persuaded that there was any error on the part of Scarlett FM. It follows that the appeal should be dismissed with costs.

Associate:

Dated: 20 December 2005