SZAUV & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1745

FEDERAL COURT OF AUSTRALIA

SZAUV & Ors v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1745

MIGRATION – no issue of principle SZAUV & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1421 OF 2004 CONTI J 1 DECEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1421 OF 2004

BETWEEN: SZAUV

FIRST APPELLANT

SZAUW

SECOND APPELLANT

SZAUX

THIRD APPELLANT

SZAUY

FOURTH APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 1 DECEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The first, second and fourth appellants pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1421 OF 2004

BETWEEN: SZAUV

FIRST APPLICANT

SZAUW

SECOND APPLICANT

SZAUX

THIRD APPLICANT

SZAUY

FOURTH APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 1 DECEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the orders and reasons for judgment of Federal Magistrate Baumann made and given on 10 September 2004, whereby his Honour dismissed the appellants' 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 28 May 2003. The Tribunal decision affirmed the decision of the Minister's delegate made on 13 June 2002 not to grant the appellants a protection visa. 2 As in the decision of Baumann FM, in terms of recitation of background facts and circumstances bearing upon the current appeal, I repeat and adopt the summary of the Tribunal: 'He [the first appellant] was politically active in the Awami League for over 30 years; he lived in Dhaka and had business interests there but he was involved in politics in the Barisal district, especially in the period from 1994; he helped his cousin/brother-in-law in the Barisal district in the 1996 and 2001 elections and helped an Awami League candidate back in Bakerganj constituency; claims he and his family were "tortured" on election day October 2001 with the election in his area being postponed for a week; the result of the election was that there was a change of government from Awami League to essentially BNP candidates; he says the attention he received or feared he would receive from his political opponents and extortionists got worse after the election. He left the country briefly in November 2001 and says he was hiding in Bangladesh after that; two cases were lodged against him in January/February 2002 and police were after him; he says he had to leave Bangladesh for his own sake and for the sake of his family.' 3 The notice of appeal filed 30 September 2004 contained the following purported grounds (read literally): '2. The single Judge of the Federal Magistrates Court in his Honors Judgment delivered on the 10 September 2004 failed to find error of law, Jurisdictional error Procedural fairness and relief Under Section 39B of the Judiciary Act 1903. 3. The grounds and relief is very much similar with the recent High Court Judgment – Muin v refugee review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: Immigration – Refugee – Protection visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Registrar for purpose of review – Nature and extent of obligation – Migration Act 1958(Cth), ss 148(3), 424(1). 4. The Honorable trial judge erred in considering the real state of affairs of me, I feared harm. And also the present ruling government fail to protect civilians life, which is a worldwide concern today. Honorable Trial judge did not take it into consideration. 5. S474 of Migration Act is ineffective as per the recent two decisions of the High court of Australia. Honorable trial judge did not consider this in favour of me. 6. The applicant will face persecution if she returns to his country of origin as there are significant level of violation of human rights, this was not considered by honourable judge. 7. Recent High Court judgement: Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA (14 February 2003). 8. Recent Federal Court of Australia judgment: SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74 (14 February 2003).' This purported notice of appeal is identical in form to those reproduced in five earlier appeals I have heard this year: SZAIL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 266; SZAXN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 275; SZAQW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 635; SZAKU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 892; and SZALF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1065. 4 Both the appellants and the respondent relied primarily on their written submissions and oral submissions were not made to the Court. The appellants however asked for an adjournment of one month in order to brief counsel which was opposed by the respondent. There was no suggestion on the first appellant's part, who spoke on behalf of the appellants, that he had retained counsel. The appellants had not been represented before the Tribunal and the Federal Magistrate. Nor was there any suggestion of a specific matter which he would seek to raise on the appeal. I refused the application for an adjournment and dismissed the appeal with a view to publishing reasons for judgment in due course. Those reasons are now set out below. 5 As I have stated on many occasions this year alone in relation to what may be described as a standard form of notice of appeal adopted by the appellants in this matter, it is readily apparent that paragraphs 2, 3, 7 and 8 of that purported notice of appeal do not specify any viable grounds of review, but merely re-state the decision appealed from, and refer to case law in general terms, without in any way purporting to relate or apply the same to the circumstances and matters set out in the reasons for judgment of Baumann FM below, or the reasons for decision of the Tribunal, or otherwise to explain the relevance of the same to any alleged circumstances of the appellants. None of that material satisfies the requirements of Order 52 rule 13(2)(b) of the Federal Court Rules 1976 (Cth), which require an appellant to state 'briefly, but specifically the grounds relied upon in support of the appeal'. Moreover the general assertions the subject of grounds 4, 5 and 6 do not establish any viable basis for impugning the reasons for judgment below. 6 The appellants had prepared written submissions in support of their appeal with the assistance of so-called 'friends and relatives'. Those purported written submissions are reproduced literally below: '… I am a refugee applicant under the UN convention and protocol. After the departmental decision I lodged an application for review to the RRT. The preceding tribunal member… invite me for hearing with the hearing invitation letter of 08/04/03. The letter contain "Important information about your hearing" second paragraph of it "if you have any passports you should bring them to the hearing. Please also bring to the hearing your bank statements for the last twelve months. As an Asylum seeker it is unusual for RRT member to query regarding my financial document at the time of review the DIMIA decision. It is not a relevant document for consider my refugee application. The presiding member's intention to review my claims are in bad faith. In the judicial review application before the FM I like mention that I am a genuine refugee applicant, to establish my refugee application it is very important to discuss my claims in the RRT interview session. What was happened actually at the date of interview I was misguided and I provided some documents and I was till waiting for the copy judgement of case against me where I was convicted. The tribunal comments regarding the documents are generalised, it is a denial of natural justice… The Tribunal does not accept that I was persecuted because of my political opinion. The Tribunal also rejects my claims because my written evidence was inconsistent in relation to major issues. The Tribunal did not treat this matter as a s.424A issue as I brought the statement submitted in connection with the protection visa application to the Tribunal to ensure that it was before the Tribunal. In any case, if the Tribunal is wrong and I am a genuine refugee the Tribunal is still not satisfied that I have well-founded fear of persecution within the meaning of the Convention if I returns to Bangladesh now. Despite numerous opportunities to mention my fear and The Tribunal dose not accept my genuine and true claims. The grounds and relief is very much similar with a High Court Judgement – Muin v Refugee Review Tribunal, Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002)… Despite the severity of the "privative clause", an opportunity for review can lie under section 39B of the Judiciary Act (Cth) 1903, which relies on the original jurisdiction of the Federal Court. However, review under s 39B of the Judiciary Act (Cth) 1903, which relies on the original jurisdiction of the Federal Court. However, review under s.39B is gained the decision of the Refugee Review Tribunal dated 20 January 2003 can be reviewed, if the following four factors are observed: a. The decision maker acted in good faith. b. The decision is reasonably capable of reference to the power granted to the decision maker – this is unlikely to be an issue given that, to argue to the contrary, it would have to be shown that the decision maker did not have the authority to make the decision concerned, for example, had not had the authority delegated to him or her by the Minister for Immigration and Multicultural and Indigenous Affairs or had not been properly appointed to the Tribunal. c. The decision relates to the subject matter of the legislation (i.e. the Migration Act) – this again is highly to be an issue, given that a major purpose of the Migration Act is the making of visa decisions. d. Constitutional limits are not exceeded – given the clear constitutional basis for visa decision making in the Migration Act this is highly unlikely to arise. From the above factors, the only one of real significance is the first, that the Tribunal did not act in good faith. The above factors are what are known as the Hickman principles. Under the above principles, in order for the Federal Court to review the decision of the RRT, my claim that the decision maker acted in bad faith. This is very easy to find the RRT decision dated 28 May 2003 in my refugee application. This means that the decision maker got the facts wrong, took into account irrelevant matter, did not take certain matters into consideration. And the decision maker did not make an honest attempt to come to the right decision, also the decision maker intentionally made a wrong decision, in other words acted in bad faith. On the 4 February 2003, the High Court of Australia handed down its decision in plaintiff S157/2003 v Commonwealth of Australia [2003] HCA 2 (4 February 2003). This to some extent overturned the decision in NAAV or at least widened the grounds for review to include "errors of law" and denial of natural justice. The High Court held that people whose fundamental rights are at stake are ordinarily entitled to expect more than good faith. They are ordinarily entitled to expect fairness. If parliament intends to provide that decisions of the Tribunal, although reached by an unfair procedure, are valid and binding, and that the law dose not require fairness on the part of the Tribunal in order for its decisions to be effective under the Act, then s474 is insufficient to manifest such an intention. The High Court went on to say that if a decision was made in breach of the rules of natural justice, then that decision would not be a decision to which s474 applies. It would not be a privative clause decision as it would not properly be a decision made pursuant to the Migration Act, as the Act contemplates that decisions will be made according to law. Finally the RRT decision did reflect the mistake or error in the decision and also the RRT ignored or failed to consider my claims. And mix up irrelevant Issues. 7 To the extent that those written submissions contain grounds not raised in the purported notice of appeal, given the appellants are self-represented, I think it is prudent to allow them to rely on the same, albeit, the effect thereof in reality is to amend their notice of appeal in this manner. 8 It appears that the first submission raised by the appellants is that the Tribunal was biased because, in its letter inviting the first appellant to a hearing, the Tribunal asked the appellant to bring his bank statement to the hearing. As submitted by counsel for the respondent, whether bank statements are relevant or not does not in any way suggest or imply that the Tribunal had made up its mind and was unwilling or unable to change it regardless of the evidence. This ground ought clearly be rejected. 9 The second argument of the appellant appears, albeit confusingly framed, to suggest that the appellants were not given the opportunity to obtain documents in support of their case. The reality is, as recorded by the Tribunal Member, that the appellants did in fact provide a number of documents two days before the hearing before the Tribunal. In this context the Member said at [28]: 'I noted that the circumstances in which the documents were supplied were suspicious. I noted the many cases I had handled in which his current adviser was involved.' In any event, it is at best unlikely that if the first appellant had provided the 'copy judgement of case against me where I was convicted', it would have made any difference to the Member's conclusion: '…I do not believe that the [first appellant] ever had a profile which would have attracted Convention-related persecution to him outside of Dhaka and Barisal districts – that profile would now be considerably lower in view of his 14-month absence.' 10 As in the purported notice of appeal, the appellants raise s 424A of the Migration Act 1958 ('Cth') ('the Act') in their written submissions. However, as rightly submitted by counsel for the respondent, there is no indication of what information the appellants are referring to and no evidence to support the contention that the Tribunal failed to give them particulars of that information. 11 The balance of the appellants' written submissions contain bare assertions of bad faith and denial of natural justice. These issues were properly dealt with by the Court below and the appellants, both there and here, were unable to identify any irrelevant matter taken into consideration or any factor the Tribunal ought to have considered but did not. As his Honour said at [14]: 'The applicant [ie the first appellant] was unable to identify any irrelevant matter which was taken into consideration and could have infected the Tribunal process. Also he was unable to identify for me any factor that ought to have been considered that wasn't considered, although he again pressed his contention that clearly, in his view, the Tribunal could not have considered the effect of the persecution upon him and have come to the decision it had made. In respect of whether an honest attempt to come to the right decision was made the applicant says that there was an investigatory obligation upon the Tribunal.' As was rightly submitted by the respondent in relation to this last assertion of the appellants, while the Tribunal has the power to make investigations in the conduct of its review of a delegate's decision or at least to require the Secretary to arrange for the making of an investigation (s 427(1)(d) of the Act), there is no obligation on the Tribunal to do so and the failure to do so does not amount to a denial of procedural fairness: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992 at [43] per Gummow and Hayne JJ. 12 The appellants have therefore not articulated any conceivable error on the part of Baumann FM in the reasons for judgment below, or any other basis for upholding the appeal. The purported grounds of appeal and written submissions are stereotype in content and bear no viable connection or relevance to any finding specifically made by his Honour or for that matter the Tribunal. Again the unfortunate conclusion inferentially to be drawn is that this appeal has been brought for the purpose merely of delaying the appellants' return to their place of origin. 13 The appeal must be dismissed and the appellants must pay the Minister's costs of the appeal. At the request of the Minister I have excluded the costs order against the third named appellant, he being a minor. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.