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SZDDH v Minister for Immigration [2004] FMCA 624 (10 September 2004)

SZDDH v Minister for Immigration [2004] FMCA 624 (10 September 2004)
Last Updated: 14 October 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDDH v MINISTER FOR IMMIGRATION
[2004] FMCA 624



MIGRATION - Application for review of RRT decision - Whether application should be summarily dismissed as disclosing no reasonable cause of action - where applicant joined Muin and Lie class action - where that matter was remitted to the Federal Court and dismissed - where applicant lodged further application for review in Federal Magistrates Court - where application not particularised - where applicant failed to comply with orders of the Court - where applicant's amended application referred to matters that were not in issue and did not relate to the applicant's situation - whether certain information referred to by the Tribunal was "just about a class of persons" and thus covered by s.424A(3) Migration Act.



Migration Act 1958 (Cth), ss.65, 424A

NARE v MIMIA [2003] FCA 554

B41 of 2003 v MIMIA [2004] FCA 30

Applicant:
SZDDH



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 905 of 2004



Delivered on:


10 September 2004



Delivered at:


Sydney



Hearing date:


10 September 2004



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in Person



Solicitors for the Respondent:


Australian Government Solicitor


ORDERS

(1) Application dismissed pursuant to Part 13 Rule 13.10(c) of the Federal Magistrates Court Rules.

(2) Applicant to pay the respondents costs assessed in the sum of $3,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 905 of 2004

SZDDH


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of Bangladesh. On 18 November 1998 he deserted his ship in an Australian port. On 3 December 1998 he applied for a protection (subclass 866) visa. On 22 December 1998 his application for a protection visa was refused by a delegate of the Minister. On 13 January 1999 he sought review of that decision from the Refugee Review Tribunal.

2. On 4 April 2000 the Tribunal wrote to the applicant advising him that it had looked at all the material relating to his application but was not prepared to make a favourable decision on this information alone. He was offered the opportunity to attend a hearing and to present all evidence and other arguments in support of his claim. He was informed that he could ask leave of the Tribunal to hear oral evidence from other persons. The applicant had a migration agent. Through the agent he initially indicated that he wished to attend a hearing. However, on 19 June 2000, one day before the hearing, the agent wrote to the Tribunal advising the Tribunal that the applicant would not attend.

3. The applicant's claim to have a well-founded fear of persecution for the convention reason of political opinion, was expressed to arise out of his involvement with the Begumthana Committee of the BNP. He stated that after the Awami League came to power in 1996 he was targeted by their supporters and accused of burning and looting a local Awami League office. He stated that he was harassed and being searched for by the police, but he went into hiding and was able to obtain work on a ship in Hong Kong. The full extent of the applicant's submissions can be found in a statement which he made at [CB 23]-[CB 25].

4. The Tribunal was able to make its decision in the following manner:

"The applicant has provided only limited information regarding the problems he claims to have faced prior to leaving Bangladesh. The precise nature of his political involvement is unclear, as is the reason why he was targeted by members of the Awami League. When and why he was falsely charged with burning and looting an Awami League office is also unclear. According to information from the Australian Department of Foreign Affairs and the US Department of State, amongst others, the BNP is a large, legal political party and its members have not generally been at risk of persecution since the Awami League came to power in mid-1996 [citations provided]. If the applicant had attended the hearing it would have been possible to explore these matters more fully. However, on the evidence currently before me, I am not fully satisfied that the applicant has a well-founded fear of persecution in Bangladesh because of his political opinion, or for any other reason contained in the Convention."

5. It will be seen from the paragraph that the real grounds upon which the Tribunal came to its decision, was that it could not be satisfied as required under s.65 of the Migration Act 1958 that the criteria for the visa applied for by the applicant had been satisfied. The inference that one can see clearly from the reasons for the decision, is that there simply was not enough evidence.

6. On 17 August 2000 the applicant joined the Muin and Lie class action S89/1999. This provided him with the opportunity to have his bridging visa extended until on 29 May 2003 he filed a draft order nisi in the High Court, which resulted in the automatic remittal of his claim to the Federal Court. On 3 February 2004 Emmett J dismissed the order nisi application on the usual terms, which provided the applicant with a further opportunity to file an application for review. He did this on 26 March 2004 in this Court. The applicant provided nine grounds of review and then stated that he would provide more details later. None of the grounds of review were particularised.

7. The matter came before the Registrar where orders were made requiring him to file and serve an amended application on 25 May 2004. He was required to give complete particulars of each ground of review being relied on and provide any additional affidavit evidence by 8 July 2004. He did not comply with this order, but he was given a further extension of time until 13 August 2004.

8. The matter then came before me in a non-compliance list on 23 August 2004. The applicant indicated that he had not received advice from the scheme solicitor and I gave him a further seven days to file and serve an amended application. On 27 August 2004 he did file an amended application. The amended application which he filed also contained nine grounds, only two of which were particularised. The first ground was that the Tribunal denied the applicant procedural fairness. The particulars which are given concerning that failure all refer to the failure to provide the applicant with an opportunity to consider certain independent country information relating to document fraud. It will be clear from the extract from the reasons for decision that I have previously set out, that document fraud was not an issue in this case and the first ground and particulars thereto are an embarrassment.

9. The second ground relates to the provision of independent country information upon which the Tribunal relied pursuant to s.424A(1) of the Migration Act. The applicant claims that this was not just about a class of persons of which he was a member. It will be clear from the extract of the Tribunal's reasoning that I have referred to earlier, that the country information referred to was exactly that, it related to the BNP, the party of which the applicant was a member. This ground has no prospects of success. The other seven grounds are not particularised and to that extent the applicant remains in breach of the original orders of the Registrar.

10. Before me today the applicant argued that if given time he will provide documentation that he was unable to provide to the Tribunal. He claims that he is a genuine refugee and that he has recently received information concerning further attacks upon his family three months ago, which left his wife in hospital. For the benefit of the applicant I can do no better than to refer him to the seminal views of Allsop J in NARE v MIMIA [2003] FCA 554 on the role of courts on review. His Honour said at [10]:

"What the applicant may not well appreciate, not being a lawyer, is that the process and purpose of review to this Court does not, and cannot, involve simple re-finding of facts found by the Tribunal. Rather, the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully - for instance asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act 1958 says must be dealt with, not dealing with matters extraneous to its task, correctly understanding the laws to apply. It is not the Court's job to review the factual findings of the Tribunal unless their quality or lack thereof is such as to portray a failure to undertake properly the required task. That is why it is not open to the primary judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal."

11. The applicant also seems to be indicating that he was badly served by his migration agent and in regard to that I can only refer him to the decision of Dowsett J in B41 of 2003 v MIMIA [2004] FCA 30 where at [25] his Honour said:

"... The Chief Justice's observation in Hot Holdings and the apparent approval by the Full Court in Barrett of the extract from the Court of Appeal decision in Al-Medawi, they suggest that the decision of the House of Lords in that case should be treated with caution. Nonetheless the outcome is consistent with general principles and good policy. In my view, the prosecutor cannot complain that his actions, taken in reliance upon advice received from his immigration adviser, led to his being denied procedural fairness."

12. The Minister asks that these proceedings be dismissed pursuant to Rule 13.10(a) of the Federal Magistrates Court Rules as disclosing no reasonable cause of action. I think this is the appropriate course to take. But it will be clear from the contents of these reasons for judgment that the applicant has also failed to comply with orders of the Court and has provided pleadings which are an embarrassment.

13. During the course of this hearing, I allowed there to be read to the applicant by his interpreter in my absence, a letter of advice from counsel provided to the applicant pursuant to the Minister's scheme. I informed the applicant that if having read that advice he decided that he did not wish to proceed further with his application I would be generous to him on the question of costs, assuming in his favour that this was a document that had only just come to his attention. I also said to him that if there was anything in that document which would assist him in his case he should point it out to me and the interpreter would read it out. The applicant did not take advantage of either of my offers.

14. I dismiss the application. In these circumstances I propose to make an order for costs which takes into account the series of hearings that have had to take place in relation to this matter and attendances by the Minister's solicitors, the production of the green book and all other relevant matters. I order that the applicant pay the respondent's costs which I assess in the sum of $3,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court rules.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 20 September 2004
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