Applicant S105/2003 v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from the judgment of Scarlett FM delivered on 16 January 2006. There is a long background to the present proceedings which I shall summarise briefly. The full history is set out in the judgment of Scarlett FM: see Applicant S105/2003 v Minister for Immigration & Anor [2006] FMCA 125; and in the earlier judgment of Sackville J of 23 May 2002, reported as Applicant NADI v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 649. 2 The applicant is a citizen of Bangladesh. He arrived in Australia on 24 April 1999 on a student visa. On 9 August 1999, the appellant lodged an application for a protection visa. On 20 October 1999, a delegate of the first respondent refused to grant the appellant a protection visa. That decision was the subject of a review application to the Refugee Review Tribunal ('Tribunal'). On 5 February 2002, the Tribunal handed down its decision which affirmed the decision of the delegate not to grant the appellant a protection visa. 3 The appellant neither attended the Tribunal hearing nor communicated with the Tribunal to explain his absence. In those circumstances, the Tribunal decided that it would proceed to make a decision on the review application, pursuant to section 426A of the Migration Act 1958 (Cth), without taking any further action to allow or to enable the applicant to appear before it. The Tribunal's decision was then the subject of a review application to the Federal Court. That review application was considered by Sackville J. 4 Sackville J made orders dismissing the application and ordered that the applicant pay 50 per cent of the respondent's costs. The reasons for judgment of Sackville J carefully considered each of the contentions raised by the applicant whereby the applicant alleged error on the part of the Tribunal. Sackville J rejected each of the contentions, holding that none of them established any error on the part of the Tribunal. 5 The applicant then applied for an extension of time within which to appeal from the decision of Sackville J. On 20 August 2002, Branson J refused that application on the basis that the proposed appeal had no real prospects of success. Subsequently, the applicant filed an application in the High Court for an order nisi to review the Tribunal's decision. That application was remitted by the High Court to the Federal Court on 25 August 2003. The Federal Court then transferred the remitted application to the Federal Magistrates Court on 5 August 2005. 6 The decision under appeal in the proceedings before me is the decision of the Federal Magistrates Court on the remitted application for an order nisi. The Federal Magistrate dismissed the application on 16 January 2006. It may be that the true character of the application has the consequence that the Federal Magistrate's decision was an interlocutory decision: see NAHQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 377 at 378 [3]. However, this point was not raised and I will proceed on the footing that the Federal Magistrate made a final decision which is the subject of this appeal.

Issues on appeal 7 An appeal to this Court is in the nature of a re-hearing, but the right of appeal exists to correct error by the Federal Magistrate. The burden lies on the appellant to demonstrate that the judgment under appeal is the consequence of some legal, factual or discretionary error: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4]. 8 The grounds raised before the Federal Magistrate were, with one exception, identical to the grounds raised in the proceedings before Sackville J. The new ground was that the Tribunal was obliged to consider, and had failed to consider, the possibility that the Bangladesh Nationalist Party ('BNP') might lose power in Bangladesh and that in such an eventuality, the appellant would be at risk of persecution if he were to return to Bangladesh. 9 The Federal Magistrate held that in respect of all of the grounds agitated before Sackville J, other than the new ground, a res judicata or issue estoppel applied which prevented the appellant from re-arguing the grounds that had been rejected by Sackville J. In my opinion, this finding by the Federal Magistrate was correct. 10 The Federal Magistrate observed that the new ground had not been specifically raised in the earlier proceedings before Sackville J. However, the Federal Magistrate found that if the applicant wished to rely on such a ground, it should have been raised in those earlier proceedings. He added that there was no evidence of any special circumstance as to why it was not raised in those earlier proceedings or why it should now be permitted to be raised: see Wong v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 722; S635 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 65; and VWZG v Minister for Immigration and Multicultural and Indigenous Affairs (2005) FCA 1018. 11 The Federal Magistrate proceeded to find that the new ground could not be raised before him in these circumstances and that it would be an abuse of process to allow it to be re-litigated along with the other issues that Sackville J had rejected. In my opinion, the Federal Magistrate was also correct in these findings. In any event, the Federal Magistrate went on to consider the substance of the new ground, and held that no error was established by the Tribunal not considering it. The Federal Magistrate observed that it was a purely speculative ground and that the Tribunal was not obliged to speculate on what would happen in the future. Nor in my view was the Tribunal obliged to investigate the contingency that the BNP might lose power in circumstances where that issue was not raised either explicitly or implicitly by anything that the appellant had put before the Tribunal. 12 It follows that all of the grounds considered by the Federal Magistrate have been carefully examined and none of them make out an arguable case on the merits. In my opinion, the appellant has not established that there was some jurisdictional error by the Tribunal or some error that is appealable on the part of the Federal Magistrate. 13 I have also considered the arguments raised by the appellant in his outline of submissions filed in this Court. Those written submissions raised some additional matters. First, the appellant submitted that the Tribunal made an erroneous finding when it said: 'The possibility also exists that [the appellant] had instigated violence which had resulted in him being attacked in revenge.' The appellant took issue with this statement, essentially submitting that the Tribunal was wrong and there was no evidence that the violence against him had been an attack in revenge. 14 This complaint goes to a purely factual issue. To paraphrase McHugh J in Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67], this issue was a function of the primary decision-maker par excellence. This argument cannot support the appeal and it does not indicate any error on the part of the Tribunal that is capable of supporting this appeal. 15 Secondly, the appellant's written submissions contended that the Tribunal erroneously relied upon country information that contained the following comment: 'The above independent evidence shows that people in the applicant's position can rely on the courts and on the authorities in regard to any false charges laid against him.' The appellant points to extracts from a report of the US State Department discussing the extent to which violence is a feature of politics in Bangladesh. Again, this complaint does not support the appeal. It goes to a factual matter lying within the province of the Tribunal. 16 The third ground raised in the written submissions was, in substance, the new ground I have already addressed, namely that the Tribunal did not consider the eventuality that the current regime of law and order in Bangladesh might collapse and that the old regime under which he claimed persecution might be reinstated. I have already rejected this argument as a basis for the appeal.

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