SZBCB v Minister for Immigration & Multicultural Affairs [2006] FCA 1009

FEDERAL COURT OF AUSTRALIA

SZBCB v Minister for Immigration & Multicultural Affairs [2006] FCA 1009 SZBCB v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR NSD 918 OF 2006 RARES J 11 JULY 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD 918 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBCB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT JUDGE: RARES J

DATE OF ORDER: 11 JULY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

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

2. Costs be fixed in the sum of $900.

3. The applicant not file any further proceeding in this court seeking to challenge the decision of the Refugee Review Tribunal made on 12 June 2003 and handed down on 9 July 2003 or the decision of the delegate of the first respondent dated 25 September 2001 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. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALESDISTRICT REGISTRY NSD 918 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZBCB

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: RARES J

DATE: 11 JULY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT 1 This matter was called outside the Court today. There was no appearance for the applicant. Last night a letter was faxed by the applicant to the Registrar attaching a document which purported to be a medical certificate certifying that the applicant was unable to attend his or her usual employment or school from 9 July to 11 July by reason of 'flu and fever. The applicant provided no details to contact him today. A number of attempts have been made by the solicitor for the respondent to contact the applicant this morning, at my request, on such telephone numbers as he has provided in his various applications and to the Department. None of those attempts, I have been informed, have succeeded in contacting him. 2 The application is for leave to appeal from a decision of the Federal Magistrates Court (SZBCB v Minister for Immigration [2006] FMCA 603) given on 26 April 2006. The application to that Court had been filed on 27 March 2006 following a series of challenges to the original decision of the Refugee Review Tribunal dated 12 June 2003 and handed down on 9 July 2003, affirming the decision of the delegate not to grant a protection visa. The applicant challenged the Tribunal's decision, which had found his evidence in relation to most aspects of his claim to have been vague, generalised, lacking in specific detail, inconsistent and unconvincing. 3 The Tribunal found the applicant was not a reliable or credible witness and the lack of credibility of his evidence led the Tribunal to conclude that it was unable to be satisfied that he would face persecution in Bangladesh or faced a real chance of persecution in the foreseeable future if he were returned to Bangladesh [48]. The Tribunal also rejected his claim to be a stateless person, and found him to be a Bangladeshi national because he both spoke Bengali and had a Bangladeshi passport which appeared to have been validly and legitimately issued, and which was still valid until September 2002. 4 The Tribunal found there was no apparent reason why the applicant could not have applied to have his passport extended or a new one issued by the Bangladeshi Government [49]. The Tribunal concluded that it was unable to accept that the applicant had suffered persecution in Bangladesh because he was a stateless Bihari. Consequently, the Tribunal found that there was no real chance of the applicant suffering persecution because he was a stateless Bihari if he returned to Bangladesh, and it was not satisfied that he had a well-founded fear of persecution in Bangladesh for a Convention reason and that he had no well-founded fear of persecution in the foreseeable future if he returned to Bangladesh for a Convention reason [56]. 5 The applicant challenged the Tribunal's decision in proceedings commenced in the Federal Magistrates Court which was dismissed by Raphael FM on 20 April 2005 (SZBCB v Minister for Immigration [2005] FMCA 578). His Honour was satisfied the Tribunal made itself fully aware of the situation of Biharis in Bangladesh [13]. He also said that he was unable to find that the Tribunal had fallen into any jurisdictional error in the manner in which it came to its decision and noted that the decision appeared to be logical on its face and based on evidence that the Tribunal was clearly entitled to utilise. Accordingly, his Honour dismissed the application [19]. 6 The applicant challenged that result before Tamberlin J (SZBCB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1292). His Honour said that he had considered the reasoning of Raphael FM in this matter dismissing the application for review and could find no error of principle or law [9]. For what it matters, I agree with his Honour. However, the applicant also challenged the decision of Tamberlin J by seeking special leave to appeal from the High Court of Australia. 7 On 7 March 2006, Gummow and Heydon JJ (SZBCB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA Trans 93 (7 March 2006)) held that there were insufficient prospects of success to justify the grant of special leave, and therefore special leave was refused. 8 The applicant has sought to commence yet a further round of litigation by the proceedings the subject of this application for leave to appeal. Driver FM pointed out that, pursuant to s 477 of the Migration Act 1958 (Cth), as affected by schedule 1 clause 42 of the Migration Litigation Reform Act 2005, allowed for a maximum of 84 days from 1 December 2005 for the applicant to seek to challenge, in judicial review proceedings, the decision of the Tribunal. 9 That period expired on about 23 February 2006 and his application was only filed in the Federal Magistrates Court on 27 March 2006. Accordingly, it was incurably out of time. His Honour also found that the present application was vexatious and an abuse of the process of the Federal Magistrates Court. 10 The application for leave to appeal was supported by an affidavit of the applicant and although he has not appeared today, I have considered the material set out in that affidavit. It asserts that the Tribunal failed to consider his well-founded fear of persecution in Bangladesh. He argued that he was a stateless person like all other Biharis and that the Tribunal had failed to consider that matter ([6], [17] and [18]). 11 He also argued that there was a failure to accord procedural fairness under s 424A of the Migration Act 1958 (Cth) because he was not given adverse information without identifying what that adverse information was. The draft notice of appeal refers both to Driver FM and to Barnes FM for some reason which does not appear clear to me. It recites [6] arguments concerning the question of the applicant being a Bihari, failure to consider that he had claimed to be subject to a well-founded fear of persecution if he were returned to Bangladesh and failure to accept him as a credible witness. 12 All of these matters were matters that were canvassed in detail in the proceedings that concluded with the refusal by the High Court of Australia to grant special leave to appeal on 7 March 2006. I am of the opinion that these proceedings have absolutely no prospect of success were leave to appeal granted, that there has been no prejudice suffered and that in any event, the proceedings before the Federal Magistrates Court were incompetent in that they were filed outside the period allowed for under s 477 of the Migration Act 1958 (Cth). For these reasons I dismiss the application with costs. 13 I fix the amount of costs in the previous order at $900. I order that the applicant not file any further proceeding in this court seeking to challenge the decision of the Refugee Review Tribunal made on 12 June 2003 and handed down on 9 July 2003 or the decision of the delegate of the first respondent dated 25 September 2001 refusing to grant a protection visa without the leave of a Judge of this court. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.