SZACX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 97 (3 February 2004)

Last Updated: 17 February 2004

FEDERAL COURT OF AUSTRALIA

SZACX v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 97

MIGRATION – application for leave to set aside judgment – explanation for absence from hearing unsatisfactory – whether applicant has arguable case – Tribunal addressed all important claims – motion dismissed.







Migration Act 1958 (Cth)
Federal Court Rules O 52 r 38A


Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; [2003] 197 ALR 389 cited












SZACX V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 931 OF 2003





BEAUMONT J
3 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 931 OF 2003

BETWEEN:	SZACX APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	3 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The motion is dismissed, with costs.

2. The time for filing any appellate process shall not commence to run until 17 February 2004.

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 931 OF 2003

BETWEEN:	SZACX APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE:	3 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

INTRODUCTION

1 On 11 November 2002, the Refugee Review Tribunal ("the RRT") affirmed the decision of the Department of Immigration and Multicultural and Indigenous Affairs ("DIMIA") not to grant a protection visa to the appellant.

2 On 2 January 2003, the appellant applied to the Federal Magistrates Court for judicial review of the RRT’s decision on the following grounds:

‘The RRT failed to act on the proper principles into consideration of the merits of case.

The RRT did not act in good faith in making decision.

The decision involved an error of law being an incorrect application of the law to the facts as found by the person who made the decision.’

3 On 18 July 2003, Raphael FM dismissed the application.

4 On 6 August 2003, the appellant filed a notice of appeal to this Court on the following grounds:

‘1. The Hon. Judge has ignored the merits of my claim and did not act in good faith in regards to the claim.

2. I was deprived of natural justice by the RRT and the court.

3. The procedures that were required by the Act and Regulations to be observed in connection with the making of the decision were not observed.

4. The decisions from the RRT and the single judge ... involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the tribunal.’

5 The appeal was fixed for hearing before me on 13 November 2003. On 12 November 2003, the appellant sent a fax to the Court, stating that he could not attend Court on the following day and relying on a medical certificate referring to ‘pain left chest’.

6 The appellant did not appear on 13 November 2003, and the respondent Minister opposed any adjournment, seeking dismissal of the application.

7 On 13 November 2003, the respondent called Ms Asimis, solicitor, who had spoken to the appellant’s medical practitioner and gave this evidence:

‘MR REILLY: Can you tell the court the conversation that ensued?---Yes, the doctor answered the telephone and I told him who I was and I asked if he’d written a medical certificate recently for the appellant and he had to leave and go and look up the file and then he came back and he said yes he had and he said he told me lies and I said, well I’m a solicitor for the Minister and we have a hearing today and he has submitted the medical certificate to say that he’s not fit to attend the hearing and he said, "Yes, he cheated me. He has told me lies. He told me that [he] was only wanting the medical certificate to get out of work. He wanted it for two weeks. He said that he was lifting heavy things at work. He worked in a kitchen and if I had known that it was a medical certificate for court I would never have given it to him. I’m very sorry and if the judge wants to ring me he can and I will tell him this".’

8 Ms Asimis went on to say that, after speaking to the appellant’s doctor, she telephoned the appellant, and then gave this evidence:

‘... I spoke to the doctor at about quarter past nine, I think, and I didn’t speak to the appellant until about 10 to 11.

Where does the appellant live?---Strawberry Hills, I think. I rang him on his mobile number and he answered and I told him that I had spoken to his doctor this morning and that he had said that he was fit enough to go to court today and that if that’s the case we would like him to come to court and could he come to court. It was very important that he come to court and he said that he was in bed and I said well we’re going to oppose your application to have the hearing adjourned and if we’re successful we’ll seek to have your application dismissed and we may seek to have an order that you pay the Minister’s costs, so it’s very important if you can come today, can you come, and he said, "What court number is it?", and I said, "Court 23D". I said, "So you’re coming, are you? Be there at 11.30". He said, "No, I’m in bed". I said, "Well you understand that we’ll be seeking to have you pay the Minister’s costs if we get the application dismissed and he said yes".’

9 Ms Asimis later gave this evidence:

‘HIS HONOUR: Can I just go back to your conversation with the doctor? The certificate says pain left chest you remember?---Yes.

The doctor said to you that his concern was that he’d be lifting things at work?---Yes.

That’s as I remember it?---Yes.

Did you refer to these words "pain left chest" to the doctor?---I asked the doctor what the diagnosis was and he said it was muscular skeletal pain and that the [appellant] – his job involved lifting things at work. He worked in a kitchen. It think he said lifting pots and the [appellant] wanted to get two weeks off work because he had this pain and he didn’t want to be lifting things at work.’

10 The respondent then applied for dismissal of the appeal pursuant to O 52 r 38A of the Federal Court Rules, which provides:

‘(1) If a party is absent when an appeal is called on for hearing, the Court may:

(a) order that the hearing not proceed unless the appeal is again set down for hearing or such other steps are taken as the Court directs; or

(b) adjourn the hearing; or

(c) if the absent party is an appellant or cross-appellant, dismiss the appeal or cross-appeal; or
(d) proceed with the hearing, either generally or in relation to any claim for relief in the appeal.

(2) If an order is made under paragraph (1) (c) to dismiss an appeal or cross-appeal, or an order is made after the hearing proceeds under paragraph (1) (d), the Court may, on motion by the party against whom the order is made:

(a) set aside or vary the order; and
(b) give directions for the further conduct of the appeal.’

11 I made the order sought by the respondent.

THE PRESENT NOTICE OF MOTION

12 By notice of motion filed on 9 December 2003, the appellant moved to set aside my order made on 13 November 2003. In support of his motion, the appellant relied on his affidavit sworn 8 December 2003, relevantly as follows:

‘... At the fix hearing day I was sick, I was in medical rest. I have medical certificate. I am unrepresented because I have no money to pay the barrister fee. I have financial hardship.

I have an arguable case. I do not know legal submission. But the RRT decision overlook and ignore my all claims. ... ’

13 I listed the motion for directions on 29 January 2004. The appellant was informed, by letter, of that hearing, but did not then appear. However, on 29 January 2004 I said:

‘The [appellant’s] affidavit goes on to state and I quote:

I have an arguable case. I do not know legal submission, but the RRT decision overlook and ignore my all claims. [sic]

The purpose of this directions hearing was to inform the [appellant] who although unrepresented appears to appreciate that he has to establish an arguable case, that it will be necessary for him at next week’s hearing of the notice of motion to demonstrate to the court the basis upon which he contends that he has an arguable case in addition to the very general statements made in the passage I’ve cited from his affidavit. Unfortunately, the [appellant] is not here today, however, I will request my associate to obtain a copy of today’s transcript and forward it to the address provided by the [appellant] in his notice of motion.’

14 The transcript was forwarded to the appellant. However, although the appellant appeared before me today, no further specific evidence, material or other information was adduced by the appellant.

15 In order to deal with the notice of motion, it will be necessary to consider the reasoning of the RRT and of Raphael FM.

DECISION OF THE RRT

16 The RRT set out the claims made by the appellant. It quoted extracts from the appellant’s protection visa application, specifically recording his claim that he is ‘politically a BNP [Bangladesh National Party] youth leader in Bangladesh’, his fear of the ‘Awami League, their terrorist associates and current administration’ and his claim that the respective authorities in Bangladesh were highly corrupted.

17 Supplementary material received from the appellant was then set out by the RRT, including his statutory declaration dated 18 September 2002, translated copies of a claimed Testimonial from the Headmaster and Secretary of the Brahmanbhita Union High School dated 30 April 2001; a claimed letter from the Dhipur Union Council dated 24 September 1989; a claimed reference from the Bangladesh Jatiyatabadi Chhatradal Central Committee (Munshiganj District) and a claimed extract from the Registry of Birth dated 25 April 2001.

18 The RRT then summarised the appellant’s evidence at the hearing on 5 November 2002. The RRT records the appellant’s evidence that he bought a passport in the name of Anwar Morshed Chowdhury for approximately $A15,000 and then details the appellant’s association with the BNP. The RRT set out the appellant’s evidence regarding false charges that the appellant claimed were laid against him and the appellant’s belief that although the BNP was currently in power in Bangladesh, he could not expect to receive protection from the current government as it was in a state of ‘mini-marshal law’, and that it would be impossible for him to relocate.

19 The RRT then set out independent country information, which, it held, contradicted the evidence of the appellant with regard to the current political situation in Bangladesh and further stated that official documents, such as arrest warrants and police checks, were easily and cheaply obtained in Bangladesh.

20 In its findings and reasoning, the RRT accepted the appellant’s claim that the passport he used to enter Australia was not his own, but that the appellant was nevertheless a national of the People’s Republic of Bangladesh. The appellant’s association with the BNP youth wing since 1990 was also accepted.

21 The RRT further found that the appellant became involved in a domestic dispute between his uncle and aunt, that the appellant took the side of his uncle, supporting him in his court appearances, and that there was a subsequent incident on 14 May 2000, whereby three people called the appellant out of court, showed him a pistol and told him to withdraw his support for his uncle in the court case or they would kill him.

22 However, the RRT rejected the appellant’s claim that he had been targeted by the Awami League because of his role in the BNP youth wing. The RRT found that the incident on 14 May 2000 was not motivated by a Convention-related reason. The RRT also refused to accept the appellant’s claims, firstly that false charges had been laid against him at all, and secondly, that any such charges were undertaken at the instigation of the Awami League. In any event, the RRT found that the Bangladesh court system was sufficiently independent that it could be relied upon to provide protection for those falsely charged, even if a governing party’s activists persisted in filing false charges.

23 The RRT then considered the risk of future harm to the appellant, noting that the BNP now forms the Government in Bangladesh, and was satisfied that the appellant would receive the support and protection of his party if he were to return to Bangladesh either now or in the foreseeable future. The RRT considered the appellant’s limited political profile, previous freedom from threats and harm, both when the Awami League was in power and in the appellant’s 27 months in Australia, and the absence of any particular political enemy within the Awami League. For these reasons, the RRT rejected the appellant’s claim that it would be impossible to relocate in Bangladesh and was satisfied that the appellant was able to return home without there being a real chance he would be harmed for any Convention-related reason.

24 The RRT accepted the appellant’s claims that general security and incidence of generalised violence are considerably different in Bangladesh when compared with Australia, but held that the appellant had not claimed that this had affected him personally, nor provided any reason to suggest there was a real chance it would affect him for a Convention reason if he returned to Bangladesh either now or in the future. Further, the RRT noted that there was no claim that the appellant’s relatives had experienced any difficulties in this regard.

25 The RRT thus concluded that it was not satisfied the appellant was a person to whom Australia has protection obligations under the Convention. Accordingly, the RRT found that the appellant did not satisfy the criteria set out in s 36(2) of the Migration Act 1958 (Cth) for a protection visa.

DECISION OF RAPHAEL FM

26 In his Reasons, Raphael FM re-stated the claims and submissions made by the appellant to the RRT and the RRT’s rejection of the appellant’s claim of a genuine fear of persecution. Raphael FM then set out the appellant’s submissions to the Court, including his claims that he had a genuine fear of persecution, that he did not believe he could relocate to another part of Bangladesh, that the RRT did not understand the gravity of danger which he faced from the Awami League, that he did not believe he would receive justice from the judiciary in Bangladesh, and that the RRT did not give significant importance to the nature of the violence that exists in Bangladesh.

27 Raphael FM then said:

‘9. It will be evident from the nature of these representations that the applicant has misunderstood the powers of this court. What he appears to be seeking is a further review of the merits of his claim because he does not agree with the conclusions reached by the [RRT] however, he does not indicate that the [RRT’s] decision was reached in a manner which establishes jurisdictional error on its part.’

28 Raphael FM recorded the RRT’s acceptance of the appellant’s association with the BNP youth wing, and its acceptance of the incident on 14 May 2000, when the appellant was called out of court and threatened with a pistol, which the RRT had found was not an incident motivated by a Convention-related reason. Raphael FM found that the RRT’s findings were open on the evidence.

29 Adopting the written submissions of counsel for the respondent, Mr Reilly, Raphael FM said:

‘12. ...It is apparent that the applicant was unsuccessful because of the view the RRT took of the facts, in particular its rejection of the applicant’s claims to fear harm from the Awami League and its finding that the incident of 14 May 2000 was not motivated by any Convention reasons. The [RRT] correctly looked to the motivation of those threatening the applicant on this occasion ... .

Its conclusion that they were [not] motivated by a Convention reason necessitated the failure of the applicant’s claim. The court cannot review the merits of the [RRT’s] decision ... .’

30 In his submission, Mr Reilly had submitted:

‘4. The [RRT] accepted that the Appellant had used another person’s passport to enter Australia: RD 97.7. The [RRT] also accepted that the Appellant was associated with the youth wing of the BNP: RD 98.1. The [RRT] accepted that the Appellant had been threatened as he claimed on 14 May 2000, but not that this had anything to do with the AL [Awami League]. Rather, the [RRT] concluded, based on the Appellant’s own evidence, that this was an attempt to intimidate him for supporting his uncle: RD 98.7. The [RRT] did not accept that the Appellant was wanted on false charges from the AL as he claimed: RD 98.8-99.4. Further the [RRT] found that even if, contrary to its findings, the Appellant had been targeted by the AL he could access state protection in Bangladesh: RD 100.4. The [RRT] noted that the BNP were now in power in Bangladesh, and having regard to independent country information rejected the Appellant’s claims to have any well founded fear of future persecution from the AL or fundamentalists in Bangladesh: RD 100.6-102.2.

5. It is apparent that the Appellant was unsuccessful because of the view the [RRT] took of the facts, in particular its rejection of the Appellant’s claims to fear harm from the AL, and its finding that the incident of 14 May 2000 was not motivated by any Convention reason. The [RRT] correctly looked to the motivation of those threatening the Appellant on this occasion: Ram v MIEA (1995) 57 FCR 565 (FC) at 568 per Burchett J; Applicant A v MIEA [1997] HCA 4; (1997) 190 CLR 225 at 240-242 per Dawson J, at 284 per Gummow J. Its conclusion that they were not motivated by a Convention reason is a finding of fact. The Court cannot review the merits of the [RRT’s] decision: MIEA v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the [RRT] making a wrong finding of fact: Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at [137]. The [RRT’s] findings were open to it for the reasons it gives.

6. Further, the [RRT’s] conclusion, based on independent country information, that the Appellant could access effective protection in Bangladesh is again a factual matter for the [RRT]. It is unlikely that refugee status is to be granted to a person whose account, although plausible and coherent, is inconsistent with the [RRT’s] understanding of conditions in that person’s country of nationality: Chan v MIEA [1989] HCA 62; (1989) 169 CLR 379 at 428 per McHugh J. The [RRT’s] finding that the existence of state protection in Bangladesh was sufficient to render the Appellant’s fears not well founded is a factual matter for it eg A v MIMA (1999) 53 ALD 545 (FCA/FC) at [54]. It is not necessary for it to find that the state can guarantee protection: MIMA v Prathapan (1998) 86 FCR 95 (FC) at 104F. In the absence of a finding that the state is unable or unwilling to protect the Appellant, he cannot establish a well founded fear of persecution: Applicant A at 233 per Brennan CJ, 257-8 per McHugh J.’

31 Accordingly, as Raphael FM was unable to find any grounds upon which the application could be reviewed, it was dismissed with costs.

CONCLUSIONS ON THE NOTICE OF MOTION

32 Plainly, O 52 r 38A(2) confers upon the Court a discretion, but one to be exercised judicially, to set aside a dismissal order, or to refuse to set it aside.

33 Ordinarily, the main considerations to be taken into account in the exercise of this judicial discretion are (a) whether the appellant has satisfactorily explained his absence from the hearing on 13 November 2003; and (b) whether the appellant has demonstrated that, if the appeal were to proceed, he has an arguable case that the appeal should be allowed.

34 As to (a), I am far from convinced that this element has been established here. However, since I am not satisfied that (b) is established, I need not pursue this factor further.

35 Has the appellant established an arguable case?

36 The appellant’s grounds of appeal (set out above) were apparently drafted by a professional, but are so generally expressed that they are incapable of specific application here.

37 In the course of the hearing of the motion, I drew attention to the principle explained by the High Court in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; [2003] 197 ALR 389 at [27], that is, that if an important element of a claim was not addressed, a party could be denied natural justice. For this purpose, the claims made here must be examined and consideration given to the RRT’s approach to them. However, in my opinion, an examination of those claims shows, beyond any reasonable argument, that all important claims made by the appellant were in truth addressed by the RRT.

38 It must follow that the motion fails.

ORDER

1. The motion is dismissed, with costs.
2. The time for filing any appellate process shall not commence to run until 17 February 2004.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated: 17 February 2004

Solicitor for the Applicant:	The appellant appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	3 February 2004
Date of Judgment:	3 February 2004