SZAXY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 76 (2 February 2005)

Last Updated: 24 February 2005

FEDERAL COURT OF AUSTRALIA

SZAXY v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 76

SZAXY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1595 of 2004


WILCOX J
2 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1595 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAXY APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	2 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

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	NSD 1595 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	WILCOX J
DATE:	2 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1 This is an appeal against a decision of Barnes FM given in the Federal Magistrates Court of Australia on 18 October 2004. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice has directed that the appellate jurisdiction of the Court be exercised in this case by a single judge.

2 The appellant is a citizen of Bangladesh who arrived in Australia in November 2001. On 4 December 2001, he lodged an application for a protection visa on the basis that he was a refugee, within the meaning of the 1951 Convention Relating to the Status of Refugees and 1967 Protocol Relating to the Status of Refugees. His application was refused by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs.

3 The appellant appealed to the Refugee Review Tribunal (‘the Tribunal’). After an oral hearing on 9 May 2003, the Tribunal handed down a written decision on 19 May 2003, affirming the delegate's decision not to grant a protection visa.

4 The appellant applied to the Federal Magistrates Court for judicial review of the Tribunal's decision. A number of grounds were put before the Court, at a hearing on 18 October 2004. They all failed. The learned magistrate ordered that the application be dismissed. The appellant now appeals against that order.

5 Written submissions lodged with this Court by the appellant specify two grounds of review: actual bias and lack of good faith. It is not clear from the magistrate's reasons for decision that actual bias was argued before her. However, there was a complaint of lack of good faith. In para 11 of her reasons for decision the magistrate said this:

‘The applicant also complained generally that the Tribunal failed to act in good faith. This allegation is unparticularised. There is nothing in the material before me to suggest that there was any lack of good faith in the decision or procedures of the Tribunal. It is submitted that the decision maker did not make an honest attempt to come to the right decision and intentionally made a wrong decision. There is nothing in the material before me to support such a claim.’

6 The appellant’s written submission particularised the complaint of actual bias only in the following way:

‘On the evidence as a whole the findings of the Tribunal member as to the following matters demonstrated actual bias. Therefore, the Tribunal does not accept that I was a refugee and have no harm if I return to Bangladesh.’

7 When I asked the appellant about actual bias, he confirmed that the only basis upon which he advanced this ground was that his claim had been rejected.

8 In relation to lack of good faith, the appellant mentioned two matters. First, he said there was a lack of good faith because the Tribunal member did not believe his claims. Second, he said the Tribunal did not give him more time to get documents from Bangladesh.

9 The Tribunal member's unwillingness to believe the claims made by the appellant, without more, obviously does not demonstrate any lack of good faith. It is the function of the Tribunal to make a decision about the validity of claims of persecution made by applicants. Inevitably, some claims will not be successful. They may be factually ill-founded or misconceived. In such a case, it is the duty of the Tribunal member to reject the claim and there is no lack of good faith in the member taking that course. In the same way, the rejection of a claim does not indicate actual bias.

10 The matter of giving more time to obtain documents from Bangladesh is in a somewhat different category, although it would be only in an extraordinary case that the Court could conclude that the rejection of an application for more time demonstrated lack of good faith. Tribunal members have a duty to conduct hearings in an efficient way and to give decisions as quickly as possible. Section 420 of the Migration Act 1958 (Cth) requires the Tribunal in carrying out its functions under the Act:

‘To pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.’

11 Views may sometimes differ as to whether a particular procedural step ought to be taken in the conduct of a review. The fact that the Court might have formed a different opinion to the Tribunal member in relation to a procedural decision does not in itself demonstrate lack of good faith by the Tribunal.

12 In the present case, it is not clear that the appellant made an application for an adjournment of the hearing in order to enable him to obtain further documents from Bangladesh. It does appear there was discussion about the possibility of further documents. In the Tribunal's reasons for decision the member said this:

‘Asked if he had additional points to make in support of his claim to be a refugee, the applicant said he had wanted to obtain more documents to support his claims to have been involved in politics, but had not been able to contact the relevant people in Bangladesh. In response to the Tribunal’s comment that his initial application had been lodged some 18 months ago and that he had been advised by the Department in April 2002 that his application had been unsuccessful – giving substantial time to obtain documents or other material in advance of his hearing by the Tribunal, if he considered such documentary material to be important in supporting his claims – the applicant said that his former political colleagues in Bangladesh had probably not wanted to assist him because their preference would be for him to go back to Bangladesh and resume his political activities.’

The quoted passage suggests the discussion about further documents concluded on the note that further documents were unlikely to be able to be procured.

13 The appellant informed me today that the Tribunal’s stated reason for his political colleagues being unable to assist him was incorrect; the true reason was that they would not have access to the documents. Be that as it may, there is nothing to suggest there was any real prospect of further documents being available, if further time was given.

14 In relation to time, it is relevant to note that the hearing before the Tribunal took place some 17 months after the appellant had lodged his application for a protection visa. When I pointed this out to the appellant today, he mentioned he had come to Australia by ship, rather than by air. That appears to be correct. However, it does not explain why the appellant would not have been able to obtain any available documents in the 17 months that he had before the Tribunal’s hearing.

15 As I say, it is far from clear that the Tribunal member was asked to address his mind to the question whether there should be any adjournment of the hearing or postponement of the Tribunal's decision. There is nothing in the reasons for decision to indicate such a situation and the transcript of the Tribunal hearing has not been placed before the Court. However, even if such an application was made to the Tribunal, either expressly or by implication, I would not regard its refusal as indicative of lack of good faith. On the contrary, I would regard the Tribunal member as having been amply justified in taking the view that the appellant had had a reasonable time in which to assemble any documents that he thought likely to support his case for a protection visa.

16 No other argument having been put before me about lack of good faith, it is my view that this ground of review was rightly rejected by the learned magistrate.

17 Anticipating that the appellant would not be legally represented before me today, in advance of the hearing, I read the Tribunal's reasons for decision. I see no basis upon which it may fairly be claimed that the Tribunal fell into jurisdictional error. The learned magistrate was correct to dismiss the appellant's application for review. The appeal against her decision should be dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 22 February 2005

The Appellant appeared in person.
Counsel for the Respondent:	Ms R M Henderson
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	2 February 2005
Date of Judgment:	2 February 2005