FEDERAL COURT OF AUSTRALIA

SZMLT v Minister for Immigration and Citizenship
[2009] FCA 616

SZMLT v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 213 of 2009

RARES J

18 MAY 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for an extension of time to file and serve the notice of appeal is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     This is an application for an extension of time in which to file and serve a notice of appeal under O 52 r 15 of the Federal Court Rules.  The applicant filed the application some six days later than he ought to have filed a notice of appeal from a decision of the Federal Magistrates Court refusing him constitutional writ relief:  SZMLT v Minister for Immigration [2009] FMCA 134.  The affidavit in support of the application for the extension of time offers no explanation for the failure of the applicant to file his notice of appeal in time. Rather, it simply asserts that the applicant understands the English and Bengali languages well.

2                     When the matter was called on this morning the applicant said that he did not have a lawyer and had nothing to say.  I pointed out to him that it was important for him to persuade the Court that there was some error in either the tribunal or the trial judge’s decisions, so as to warrant the Court granting him relief.  He again repeated that he nothing to say.

3                     The bases on which the Court considers an application for an extension of time are well known:  Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J at 540-541, [66 par 4] per Kirby J:  Jess v Scott (1986) 12 FCR 187 at 191-192 per Lockhart, Sheppard and Burchett JJ:  see also SZAPG v Minister for Immigration and Citizenship [2007] FCA 372.  Under O 52 r 15(2), an applicant must satisfy the Court that there is a special reason why the appeal should be permitted to proceed, notwithstanding its having been filed after the expiry of the 21 days provided by the Rules.  Thus, an applicant must show that there is some ground to depart from the general rule.

4                     The applicant has put nothing before me to indicate why he failed to file his application in time, other than his lack of legal training or experience.  Nonetheless, I have reviewed the decision of the tribunal, signed on 14 May 2008 and the reasons of the trial judge to discern whether, in all the circumstances, there is some basis on which it may be arguable that an injustice may have been done to the applicant by the tribunal having fallen into jurisdictional error and her Honour having failed to perceive that.  However, I have not discerned any such error.

The Tribunal’s decision

5                     The delegate had refused to grant a protection visa to the applicant in January 2008.  The tribunal accepted that the applicant had been an active member of the Awami League while at college in 2001.  It accepted that he was a national of Bangladesh who had arrived here in November 2007 and sought a protection visa in December 2007.  The tribunal found that the applicant had given evidence generally in a frank and truthful manner with certain exceptions, which turned out to be critical to its rejection of his claims.  It accepted the applicant’s claim that his brother had been assaulted by students or were members or supporters of the ruling BNP party and that that assault had been for the reason of the brothers’ political opinion.  It also accepted that his brother had been detained for 12 days after attending a gathering of supporters of the Awami League in Dhaka and was ill treated while in detention.  The tribunal found that this was consistent with independent country information.  It also accepted that the applicant’s evidence that he had not been a member of the Awami League since leaving college in 2002 but considered himself to have continued to be a supporter.

6                     However, the tribunal gave a number of reasons for rejecting his claim that he faced a real chance of serious harm in the reasonably foreseeable future for a Convention reason, being his political opinion.  It found that the applicant had lived in Dhaka since 2003 but had had no problems of the kind he had claimed to have experienced earlier, despite his having continued to attend meetings of the Awami League on a regular basis.  The tribunal concluded that there was a remote chance of the applicant being harmed, as he claimed, by the police either because of his presence at the meeting at which his brother had been arrested, or of his continuing support for the Awami League.  It found that the Awami League continued to be a legal political party in Bangladesh and that it would be surprising if the applicant’s mere presence as a supporter at a meeting of the party would result in any sustained interest in him by the police.

7                     The tribunal rejected his claim that the police had continued to make enquiries about his family before the state of emergency had been declared in January 2007 in Bangladesh and it was not satisfied that the police had made enquiries of his family about him prior to that time.  It noted that he had not made a claim that enquiries had been made since then and found that this feature also pointed to a lack of interest by the police in the applicant’s whereabouts.  It also found that he had continued to work for the same employer in Dhaka throughout the period in which he claimed to have been in fear, without any apparent police interest in him and that he had been able to attend Awami League meetings in that city, again without any police harassment of his attendances at such meetings.

8                     The tribunal noted that when giving his address for his passport application, the applicant informed the authorities of his sister’s address in Dhaka, when he could simply have provided a false or a different address.  It found that the applicant’s willingness to provide the sister’s address showed a confidence that doing so would not lead to her coming under suspicion by the police because of her contact with him.  It found that this conduct was not consistent with his claimed fear that the police were actively looking for him.  The tribunal found that, while tens of thousands of people had been arrested in Bangladesh since the declaration of a state of emergency in January 2007 and more had been arrested since, there had been no interest by the police in the applicant’s whereabouts during this period.  It found that until his departure from Bangladesh he had continued to work, at the same office, without any official enquiries being made of him, or about him, or his family members or anyone else, that he had been issued with a valid Bangladesh passport and had been able to leave that country legally and openly.  The tribunal rejected any connection between his claim that he had paid a bribe to avoid some police checks on his passport, finding that his passport would not have been refused because of his political opinion.

9                     The tribunal also found that at the time of its hearing ordinary supporters of the Awami League were not at risk of being arrested because of their political opinions and the limitations on political activity in the country applied equally to supporters and members of all political parties.  It noted evidence from the Department of Foreign Affairs and Trade that political gatherings of less than 50 people in Dhaka had been allowed under the state of emergency.  The tribunal was satisfied that the applicant would be able to continue to participate in the level of political activities in which he had been involved before his departure from Bangladesh.  It therefore found that he was not subject to any serious harm or limitations on his right to freedom of expression because of his political opinion in the years after leaving university and prior to the introduction of the emergency rule, despite the Awami League being in opposition.

10                  The tribunal concluded that the chance was remote that he would face persecution for reason of his political opinion under similar circumstances in the future.  Accordingly, it was satisfied, and found, that the applicant did not have a well founded fear of being persecuted for the convention reason of political opinion, or any other reason, were he to return to Bangladesh.  The tribunal noted that it did not have jurisdiction to consider his circumstances on humanitarian grounds, as it had explained to him.

The trial judge’s decision

11                  Her Honour noted that it would be open to the Minister under s 417 of the Migration Act 1958 (Cth), to consider that last circumstance, referred to by the tribunal, should the applicant seek to raise it.  She rejected his claims that the tribunal in some way had breached its obligations under s 424A(1) of the Act.  Her Honour found that the grounds in the application before her were of a boiler plate variety that had nothing to do with the facts and circumstances of the applicant’s claim.  Those grounds had cited from different authorities and referred, in a generalised way, to matters not connected in any way to the applicant’s claims made before the tribunal.

This application for leave

12                  The draft notice of appeal lists three proposed grounds:

·                    the tribunal breached its “obligation” under s 424A of the Act because it made a number of findings to reject the applicant’s claims;

·                    “the tribunals obligation under s 424A(1)(b) needs review”;  [sic] and

·                    the tribunal had an obligation to act according to its findings.

13                  Again, these grounds are generalised and completely unparticularised.  Her Honour found that the tribunal was entitled to rely on independent country information within the exception in s 424A(3)(a) of the Act because that information was not specifically about the applicant or another person.  It was just about a class of persons of which the applicant or another person was a member.  She found that there was no obligation to put particulars of such information to the applicant under s 424A(1), to put particulars of the source of that information to him, or to notify him of it.  Her Honour was plainly correct in that conclusion.  Nor was the tribunal obliged to give the applicant some opportunity to engage in a running commentary on the tribunal’s current state of thinking or reasoning, as her Honour found:  SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 616 [18] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

14                  There was no material in the tribunal’s reasoning and decision record, including its account of what occurred before it, which was the only evidence before her Honour or me, of anything that happened in the hearing to suggest that the tribunal had failed to comply with s 425 of the Act by not giving the appellant an opportunity to be heard on a matter that was in issue before it.  As her Honour said:

“The applicant has not identified any particular issues that were not brought to his attention or, indeed, the manner in which he claims that he was denied procedural fairness.  This claim is not made out.”

15                  As I have said, before me, the applicant said nothing in support of his case.  Accordingly, I am unable to see any error in the decision arrived at by the trial judge. I do not consider that any of the proposed grounds of appeal disclose any issue of substance, which it would be in the interests of justice that the applicant have an opportunity to litigate in full on an appeal to this Court.  There was no explanation of the delay in filing the notice of appeal.  Although the delay is short and I would infer that it occurred in part because of the applicant’s unfamiliarity with the requirements of the rules, the proposed appeal is so lacking in any substance or apparent merit that there is no ground on which I should permit an extension of time to be granted.

16                  For these reasons, I refuse to grant the extension of time.

Associate:

Dated:         9 June 2009