FEDERAL COURT OF AUSTRALIA

SZAKP v Minister for Immigration & Multicultural Affairs

[2006] FCA 1007

SZAKP AND ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR

NSD 1035 OF 2006

RARES J

11 JULY 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed with costs.

2. Costs be fixed in the sum of $1,000.

3. The applicant not file any further proceeding in this Court seeking to challenge the decision of the Refugee Review Tribunal made on 12 March 2003 and handed down on 3 April 2003 or the decision of the delegate of the first respondent dated 8 February 2000 refusing to grant a protection visa without the leave of a Judge of this Court.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     In these proceedings the applicants seek leave to review a decision of Nicholls FM, SZAKP & Ors v Minister for Immigration [2006] FMCA 809. The applicants are a husband and a wife, together with their children, a son aged 17 and their other child aged 11. The applicant wife has set out very clearly why her family wishes to challenge the decision of his Honour. She has put two reasons forward for saying that the decision of the Refugee Review Tribunal, which was made on 12 March 2003 and handed down on 3 April 2003, was wrong.

2                     First, it was submitted that the Tribunal had erred in its conclusion that the reason why the applicant had been attacked by a group concerning his religion had not been properly addressed by the Tribunal. The applicants’ case before the Tribunal involved a situation in which they, as nationals of Bangladesh, were both Christians. A nephew of the husband had married a Muslim girl and she had converted to Christianity. Following that conversion, the Tribunal found that the nephew and his wife had been gaoled. The husband claimed to have been physically assaulted because of his connection to his nephew's marriage to the Muslim girl and claimed to have been targeted because of that conversion.

3                     The Tribunal considered that claim but found the information given to it did not support the husband's assertion that he was perceived as playing any part in encouraging the nephew's wife's marriage or her religious conversion (see p 26). The Tribunal found it was implausible that the Muslim girl's father would perceive the husband as being responsible for his daughter's conversion to Christianity when he had not become involved in the matter until after her father had taken court proceedings. The Tribunal also found it implausible that the husband would be targeted because he had caused the girl to convert to Christianity rather than, for example, his nephew's parents or even the pastor who had baptised her (at p 26).

4                     The Tribunal then considered that it was even more implausible that there was a risk of the husband being targeted because he had not been attacked at all, according to the Tribunal's findings, between June 1997 and October 1999. Although the husband claimed that he had not been attacked during that period because he was in hiding, the Tribunal noted that he remained living in Dhakar and travelled to Comilla on a regular basis to attend court in connection with legal proceedings involving his nephew. The Tribunal observed that those legal proceedings obviously involved the very person whom the husband claimed was responsible for the attacks on him and was the person he feared. The Tribunal said that in its view the husband's assertion, that he was not attacked for a period of some 2 years and 4 months because he was in hiding, lacked credibility.

5                     The Tribunal also said that it was not satisfied that the husband had been involved in an incident in which he claimed to have narrowly escaped being attacked in October 1999 (p 26). It also rejected, on not being satisfied as to the evidence, a number of other claims that the applicant made in relation to the consequences of the marriage of the nephew to the Muslim girl and her conversion to Christianity. The husband also claimed that he was again attacked in December 1999 when he and his family were travelling to Comilla by bus. The Tribunal accepted that that incident occurred but was not satisfied that the husband was the victim of anything else other than a random criminal act (p 28).

6                     The Tribunal explained its reasons for coming to this conclusion by saying that when the bus was stopped the husband was not the only person on it who was being threatened. He gave evidence to the Tribunal that the people who got on the bus asked him his name and he gave them a Muslim name in response. The Tribunal formed the view that if the husband had been specifically targeted it was implausible that he would have been asked his name by the attackers or that they would not have some response when he gave them a Muslim name instead of his own.

7                     The Tribunal found that overall it was not satisfied that the husband had ever been attacked because of his religion or because he was perceived to have converted his nephew's wife to Christianity, although it did accept that on one occasion, in June 1997, he was attacked because of his involvement in the legal proceedings brought by the nephew's father-in-law (p 28). Moreover, the Tribunal stated that it was not satisfied that the husband genuinely feared that he would be attacked again if he remained in Bangladesh.

8                     It pointed out that the applicants remained in that country for some 6 weeks after the Australian visas were issued. The husband said they needed to remain in Bangladesh as he had business to take care of and that the wife needed to wait until her leave commenced. The Tribunal observed that explanation suggested the applicants were not in any particular hurry to leave Bangladesh and that if they had considered themselves to be at risk in Bangladesh they would not have remained there for 6 weeks after obtaining visas but would have left at the earliest opportunity.

9                     The wife before me today said that she wanted to raise a new matter to show that the Tribunal's reasoning in this respect was open to be revisited; that was because when the Tribunal had asked her why they had not left Bangladesh for the period of 6 weeks after the Australian visas had been issued, she had forgotten to raise that there were a number of holidays during December 1999, as well as strikes and uncertainties in the internal situation in Bangladesh, so that effectively there were only very few days during the working weeks on which it was possible for them to make arrangements to obtain money from the bank and also to make travel bookings.

10                  Even if the Tribunal were to have had that evidence given to it, it does not seem to me to establish any jurisdictional error such as would justify the Court in setting aside the decision of the Tribunal. It is unfortunate that the wife overlooked raising the explanation which she wished to give at the time of the Tribunal's hearing so that it did not have the benefit of that explanation with which to assess their claims, but that is not an error of the Tribunal. It is, as the wife explained to me today, really because she failed to remember something to tell the Tribunal.

11                  The Court is not entitled to set aside decisions that have been made because applicants for those decisions, however understandably and humanly, may have forgotten to tell the Tribunal something when they were given the opportunity to explain their case to it in order that it could decide whether or not to make a decision to grant a protection visa.

12                  The applicants challenged the Tribunal's decision before the Federal Magistrates Court in proceedings in 2004 before Driver FM (SZAKP & Ors v Minister for Immigration [2004] FMCA 192).

13                  On 30 June 2004 Driver FM dismissed the application. His Honour reviewed the Tribunal's decision and the arguments which the applicants had advanced to him. He concluded that there was no jurisdictional error in the decision of the Tribunal and that it was a privative clause decision (at [21]). The applicants appealed to this Court and on 29 October 2004, Whitlam J dismissed the appeal with costs. On the appeal before Whitlam J, the applicants were represented. His Honour considered that neither of the points taken by their counsel on that occasion had the slightest merit. I think it fair to say that his Honour found the arguments to be even less than unmeritorious.

14                  The applicants then sought special leave to appeal from the High Court of Australia (SZAKP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA Trans 833). On 7 October 2005 McHugh and Heydon JJ dismissed the application saying that the applicants' submissions in support of their application were pro forma and noted that the situation was similar in the Federal Court proceedings, where Whitlam J had referred to the grounds put to him as being relied on as ‘gibberish’.

15                  The application to the High Court was not understood by their Honours as having involved the presentation of any particulars of error in a meaningful way and or being of any assistance in their application. The Court said:

‘The Tribunal held that “some of the evidence given by the applicants was truthful. However the applicant husband significantly exaggerated and embellished some aspects of his claims in order to enhance his refugee status.” Several of the claims were “implausible”. While the Tribunal did not conclude that the applicant husband was an unreliable witness in general, it nonetheless was “not satisfied that the applicant has ever been attacked because of his religion, or because he was perceived to have converted his nephew's wife to Christianity”. These findings were open to the Tribunal to make. The result is a conclusion that the applicants are not persons to whom Australia owes obligations under the Refugee Convention. In the absence of any arguable error of law, it is impossible for the applicants to overcome these findings of fact. Accordingly, the application for special leave to appeal must be refused.’

16                  The applicants then brought the proceedings before the Federal Magistrates Court that are the subject of this present application. Nicholls FM dismissed that application on 16 May 2006. He went through every ground of appeal sought to be raised with the applicants, asking the wife for her comments and formed the view that having heard those comments, they had no prospects of succeeding in an argument that there had been failure to comply with notification requirements arising under s 66 of the Migration Act 1958 (Cth) to invalidate the decision of the delegate.

17                  The application before his Honour was found to be an abuse of process (see [14]). It is clear that the attack on the delegate’s decision has been made, as is frequently done in recent times, because the applicants, having failed to set aside in judicial review proceedings a decision of the Tribunal then seek to attack the decision of the delegate, the subject of the review. For the reasons that I explained in SZGGS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 224 and upheld by Heydon J in SZGGS v MIMIA & Anor [2006] HCA Trans 352, it is not open to challenge a delegate's decision after there has been a full hearing on review of that decision by the Tribunal.

18                  Nicholls FM held that, in his view, having regard to the procedural history of the case, there was a clear and separate discretionary reason for refusing the relief now sought, which was to review the delegate's decision and that was that no steps had been taken during the long procedural history, other than the proceedings in the Tribunal, to challenge the delegate's decision. There had been, as his Honour correctly held, unwarrantable delay in seeking the leave sought. In SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at 183-184 [80] per McHugh J and 211-212 [210]-[211] per Hayne J (with whom Kirby J at 203 [174] agreed) it was held that there was an undoubted discretion for the Court to refuse to grant prerogative or constitutional relief on the ground of delay, waiver or acquiescence or other conduct of the applicants such as might disentitle them to such relief: see also SZATR v Minister [2006] FCA 986.

19                  I am of the opinion that the present application has no reasonable prospects of success and that no substantial injustice would be done by refusing the application for leave to appeal. For those reasons I dismiss the application with costs be fixed at $1,000.

20                  I order that the applicants not file any further proceeding in this Court seeking to challenge the decision of the Refugee Review Tribunal made on 12 March 2003 and handed down on 3 April 2003 or the decision of the delegate of the first respondent dated 8 February 2000 refusing to grant a protection visa without the leave of a Judge of this Court.

21                  The applicants appeared to me to be people who were earnestly trying to overturn a decision that they perceived to be unjust and unfair and I perceive them to be sincere in what they did and said. They have a child who is studying for the higher school certificate this year and they sought to raise that as a reason why I should grant relief. Of course that is no reason for me to grant relief. It may be that the Minister would, notwithstanding the forensic failures of the applicants to persuade any court that their case should be looked at in the end, may wish to reconsider the decision made by the Tribunal and come to a more favourable decision for them.

22                  Certainly the decision of the Tribunal, if reviewed, may, on a merits review, which is not open to the Court, warrant the Minister exercising her discretion if she chose to do so, but it is not for the Court to make suggestions as to how she may wish to act, if she wishes to act at all.

Associate:

Dated: 4 August 2006