SZAKH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 894

FEDERAL COURT OF AUSTRALIA

SZAKH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 894

MIGRATION – no issue of principle SZAKH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 439 OF 2004 CONTI J 8 JULY 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 439 OF 2004

BETWEEN: SZAKH

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 8 JULY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The amended notice of appeal filed on 29 April 2004 be dismissed. 2. The appellant pay the respondent's costs and disbursements of and incidental to the appeal, fixed in the sum of $2,500.00. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 439 OF 2004

BETWEEN: SZAKH

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 8 JULY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the judgment and orders of Federal Magistrate Driver given and made on 17 March 2004, whereby his Honour dismissed the appellant's application purportedly brought pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of the decision of the Refugee Review Tribunal ('the Tribunal') made on 26 March 2003. The Tribunal decision had affirmed the decision of the Minister's delegate made on 22 August 2001 not to grant the appellant a protection visa. 2 The notice of appeal filed 29 March 2004 read literally under the heading 'Grounds' as follows: '2. The Federal Magistrate did not properly consider my judicial review grounds. I was totally nervous at interview time in the RRT. I was scared to tell the Freedom Party leaders name as the party is band to do any politics in Bangladesh and leaders were band to do so.' The reference to the 'RRT' is of course to the Tribunal. Under the heading 'Order Sought' the pleading continued as follows (read literally): '1. I was totally nervous at the hearing and question time on 26 March 2003 to the RRT. 2. The Freedom Party leaders of Bangladesh, except Colonel Farook are not well known leaders so it was hard to tell in my location areal leaders. 3. General Farook is the only leader who knew every people as one man show of the party. 4. The Federal Magistrate Driver FM just parroted the decision of RRT, that I am seeking appeal. 5. The Federal Magistrate should direct the RRT to re-hearing considering my awkward situation on hearing date.' 3 On 20 April 2004 the appeal was listed for first directions. On that occasion I informed the appellant that the purported 'grounds' of appeal set out in [2] above bore the hallmarks of a standard precedent which I had previously seen, apparently drafted by a migration agent without paying any regard to the findings appearing in the judgment of Driver FM, and disclosed no conceivable or viable grounds in law for setting aside his Honour's decision. I directed that the applicant file and serve an amended notice of appeal, and I set the matter down for further consideration on 4 May 2004. The appellant's amended notice of appeal was filed in the Court's registry on 29 April 2004, and reads literally as follows: '1. I was terrified to disclose the name the Freedom Party leaders before RRT as, the Awami League has outlawed Freedom party of Bangladesh and ordered to arrest it all central and regional leaders. AL also handed the list of its hiding leaders whose are now in overseas to the Interpol by international warrant. 2. The Interpol meanwhile, arrested some of its fugitive leaders from Thailand and Canada who are locked up in Dhaka jail. Therefore, I was so scared to disclose any particulars as I may be deported from here. 3. The tribunal just take benefit of the circumstances. The tribunal should be provided, about my right and consequence of disclosure of information before my oral submission. Failure to disclosed such information is indicates that the tribunal did not act in good faith. 4. Questions of credibility about my oral evidence and comment about it against of natural justice, as I did not spell any correct word from my mouth as I was nervous which pronounced by the tribunal member voluntarily. 5. The tribunal should give be given me next opportunity for hearing of the review application, considering my nervousness and failed to do so amounts to bias in favour of the respondent. 6. The Federal Magistrate Driver FM must be considered about my mental discomfort in the date of hearing before the tribunal member which voluntarily came out from tribunal member. 7. The Federal Magistrate totally failed to justify the misuse of natural justice by the tribunal and parroting the words of the tribunal that I have given fair opportunity to make oral submission is contrary to natural justice. 8. The comment made by the Federal Magistrate about giving me fair opportunity is an error of law. I was not totally fit that day for hearing which automatically came out from the words judgment by tribunal member. 9. I knew about the establishing of Freedom Party, and the name of party's 'mouth piece' the daily news paper but I was hold backed due to aforesaid reasons.' 4 At the next directions hearing before me on 4 May 2004, although I granted leave to the respondent to move that the appellant's amended notice of appeal be struck out upon the basis that no viable basis or ground for the appeal was disclosed, the respondent requested rather that the matter proceed to a final hearing. A hearing date was set down for 8 July 2004 and on that day, I dismissed the appeal with costs and indicated I would publish my reasons. Those reasons are set out below. 5 In terms of further background facts to the current appeal, as did Driver FM, I adopt paragraphs 3 to 6 of the written submissions of the respondent filed in chambers on 30 June 2004, which are essentially the same as those referred to in paragraph [2] of his Honour's reasons for judgment: 'The appellant claimed to be a citizen of Bangladesh who arrived in Australia on 17 May 2001 and applied for a Protection Visa on 6 June 2001. In the statement accompanying that application the applicant claimed that he feared persecution in Bangladesh by reason of his political opinion. In particular, he claimed that he had been persecuted in the past by members of the Awami League and the police by reason of his involvement in the Bangladesh Freedom Party. A delegate of the respondent decided on 22 August 2001 to refuse to grant the applicant a Protection Visa and on 12 September 2001 the applicant applied to the Tribunal for review of that decision. By letter dated 23 January 2003 the Tribunal informed the appellant that it had considered the material before it and was unable to make a decision in his favour on that material alone. In the letter the Tribunal invited the appellant to attend a hearing in order to give further evidence and to make submissions in support of his claims. The appellant attended the hearing on 26 March 2003 and on that day the Tribunal delivered its decision Tribunal's Decision The Tribunal did not accept the appellant as a credible witness. This was because at the hearing the appellant was unable to answer anything of significance about the Freedom Party. According to the Tribunal the appellant did not know when the Party was formed, he did not know the name of its youth wing, the name of the newspaper or anything about the local Freedom Party in the electoral districts which it had contested in the June 1996 elections. Apart from knowing that Colonel Farook had been detained in 1997 the appellant knew nothing about the personalities in the Party and particularly not the central leadership although he knew the name of the Awami League candidate and the name of the youth wing in his area. In light of the appellant's evidence in this respect the Tribunal found that the appellant had never had an association with or had been a member of the Freedom Party and that his claims to that extent were fabricated. The Tribunal concluded that the appellant was not a person to whom Australia owed protection obligations.' 6 Reading the notice of appeal and amended notice of appeal together, it seems the appellant's complaint relates to the circumstances that he was 'nervous', 'scared' and 'terrified' at the hearing before the Tribunal, and was therefore unable adequately to answer the questions of the Tribunal member. The accusations of denial of natural justice, bias and the failure of the Tribunal to act in good faith appear to flow from those circumstances, because it is alleged the Tribunal should have informed the appellant about his rights and the consequences of non-disclosure of evidence which affect his credibility. Accordingly, the appellant seeks another hearing before the Tribunal, purportedly to properly answer the Tribunal member's questions, the answers to which he inferentially could provide. 7 In answer to essentially the same area of complaint advanced by the appellant, Driver FM stated at [6] as follows: 'The applicant was given an opportunity at the hearing before the RRT on 26 March 2003 to expand and support his claims. The presiding member was entitled to test the veracity of his claims through interrogation. The opportunity given to the applicant by the RRT appears to me to have been a fair one. It appears that the applicant was somewhat nervous at the RRT hearing but he told me that he did not alert the presiding member to any problem he may have had. The presiding member clearly had credibility concerns but put them to the applicant. There is nothing before me to persuade me that the presiding member had a closed mind. The decision was clearly based on credibility findings made by the presiding member but it appears to me that those findings were reasonably open to the RRT on the material before it.' 8 The respondent 'respectfully adopts his Honour's [Driver FM's] reasons and submits that no error has been disclosed.' The respondent submitted that the nine paragraphs of the amended notice of appeal 'go to the merits of the appellant's case before the Tribunal and do not reveal any error by the court below', and further that the Court 'cannot review the merits of this case.' I agree with those submissions, and in that regard I adopt paragraphs 7 to 9 of the respondent's written submissions, which are reproduced below, being in a similar form as set out in paragraph [3] of Driver FM's reasons: 'The findings of the Tribunal are so clear that it cannot be said to have made any error of law. Having rejected all of the appellant's claims there was nothing for the Tribunal to do but to affirm the decision under review. It was not a case where there was some residual factual element which could possibly lead to a finding that the appellant was a person to whom Australia owed protection obligations under the Convention. Simply put, the Tribunal did not accept a word of what the appellant said and on this basis was entitled to reject the application and to affirm the decision under review. There is no evidence to suggest that the appellant was denied procedural fairness. It is clear that he was invited to attend a hearing and that at that hearing the Tribunal put to him that it did not accept his evidence because it was inconsistent with the Tribunal member's knowledge of the Freedom Party. The applicant there had the opportunity to address that issue and attempted to do so. The fact is that the Tribunal was not convinced by the appellant's evidence. In order to establish that the Tribunal was biased the appellant must show that its mind was so made up that it was incapable of alteration regardless of what evidence or material was before it: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The evidence before the Court establishes that the Tribunal was not able to make a favourable decision on the material before it prior to the hearing and that it was not convinced by the appellant's evidence at the hearing that it out to make a favourable decision. Further, the evidence establishes that the critical issue for the Tribunal was the evidence given by the appellant as to his knowledge of the Bangladesh Freedom Party. This suggests that far from having a closed mind the Tribunal was swayed by the evidence given to it such that it relied entirely upon that evidence in order to arrive at its decision. This ground cannot be made out.' 9 In the result, Driver FM held below that no jurisdictional error had been established on the basis of the application made to the Court, and duly dismissed the same. I agree with his Honour's conclusions and the reasons which he furnished in support thereof. I dismiss the appeal and order that the appellant pay the respondent's costs. 10 I conclude by observing that the notice of appeal and amended notice of appeal bear no viable connection with or relevance to any finding specifically made by Driver FM. The unfortunate conclusion inferentially open to be drawn is that this appeal has been brought and maintained for the purpose merely of delaying the appellant's return to his place of origin. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.