SZBQV v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 By notice of appeal filed 21 June 2004, the applicants purported to appeal from the decision of Raphael FM given on 16 June 2004. 2 On that date the learned Federal Magistrate made orders confirming self-executing orders of Registrar Hedge made on 18 March 2004. The effect of the self-executing orders was to dismiss an application for review of a decision of the Refugee Review Tribunal ("the RRT") handed down on 8 October 2003, by reason of the applicants' failure to file and serve a properly particularised application for review on the date fixed by the orders. The RRT affirmed a decision of a delegate of the Minister refusing to grant a protection visa to the applicants. 3 The applicants are a husband and his wife and two daughters. The husband relied on a Convention ground to support his claim that he is a person to whom Australia has protection obligations. His wife and daughters did not rely upon the Convention and their claims depended upon their membership of the family unit. It is convenient to refer to the husband as the applicant. 4 Registrar Hedge's orders provided, relevantly, as follows:- "… 2. The applicant file and serve a further amended application for judicial review clearly identifying the grounds of jurisdictional error relied upon and confirming particulars of every ground of review relied upon on or before 8 April 2004. 3. If the applicant fails to comply with order 2 by 8 April 2004 the application is dismissed by force of these orders with costs fixed in the sum of $1,500.00." 5 It would appear that these proceedings were listed before the Federal Magistrate on 7 June 2004 on the application of the Minister who refused to accept that Order 2 had been complied with by the filing on 8 April 2004 of a faxed form of application. 6 The Minister contended before the Magistrate that, although a further amended application had been filed on 8 April 2004, the applicant had failed to comply with the Registrar's orders in two respects. First, the further amended application was not served on the Minister. Second, it did not clearly identify or particularise the grounds of alleged jurisdictional error. 7 The applicant seems to have recognised the force of the second contention because on 27 May 2004 he sought to file a second further amended application which the Magistrate described as the "further further amended application". 8 His Honour approached the matter on two separate bases. First, he found that Order 2 made by Registrar Hedge had not been complied with because of the applicant's failure to serve the further amended application or to properly particularise the grounds of jurisdictional error. 9 Second, he considered whether he ought to exercise his discretion to set aside the orders by reason of the filing of the second further amended application. The Magistrate did not consider whether he had power to do so, but FAI General Insurance Co Ltd v Southern Cross Exploration NL (1987) 165 CLR 268 is authority for the proposition that he had such power in the interests of justice; see especially per Gaudron J at 288-289. The learned Magistrate, however, came to the view that he ought not to exercise the power because the second further amended application did not disclose "a compelling reason" to set aside the self-executing orders; see [9] of his Honour's reasons. 10 The Federal Magistrate's order confirming the self-executing orders was interlocutory because it did not in a legal sense determine the rights of the parties; see the authorities referred to in Minogue v Williams (2001) 60 ALD 366 at [18]. Moreover, there is authority for the proposition that a "guillotine" order dismissing proceedings in the event of a failure to comply with a direction is interlocutory; see Bourke v State Bank of New South Wales [1995] FCA 139 per Beaumont, Einfeld and Beazley JJ. Accordingly, leave to appeal is necessary; see Federal Court of Australia Act 1976 (Cth), s 24(1A). 11 On 8 July 2004 Registrar Hedge ordered that the notice of appeal be treated as an application for leave to appeal. The application for leave to appeal was listed for hearing before me on 8 September 2004. The applicant was content for me to determine the application without the matter being heard by a Full Court. 12 The applicant is a citizen of Bangladesh. He claimed to have a well-founded fear of persecution on political grounds by reason of his membership of the Awami League. He claimed that he was targeted by his political opponents in the BNP and the Jamaat-e-Islami. 13 The RRT accepted that the applicant was arrested and interrogated in 1996 but it did not consider that this constituted persecution pursuant to s 91R of the Act. 14 The RRT also accepted that the applicant suffered violence at the hands of his political opponents in the period surrounding the 2001 election. However, the RRT referred to country information to the effect that the violence had subsided after 2002. On that basis, the RRT considered that the applicant's fears of politically motivated violence of the kind that occurred around the election period were not well-founded. 15 The RRT referred to the history of violence between supporters of rival political movements in Bangladesh. It said that it did not accept that the applicant had experienced harm as a result of his political beliefs for a Convention reason. 16 In any event, the RRT considered that adequate State protection was available and that the applicant's profile as a political activist was not prominent. 17 The RRT said at [67]:- "The Tribunal considers that, despite testimony provided by the Applicant of occasions on which he was targeted in violence which he believed to have been politically motivated (paras 19, 20, 29, 32 and 34 above), he would be likely to resume activities in support of the Awami League on returning to Bangladesh. The Tribunal considers that, taking account of his previous experiences, he would be able to do so in ways which avoided serious harm. In making this finding the Tribunal takes account of the history of violence between supporters of rival political movements in Bangladesh referred to in the country evidence and court finding above, but considers that there is not a real chance of the applicant experiencing such violence at the levels described in s 91R of the Act as examples of persecution. The Tribunal considers that the Applicant would be likely to engage in political activity in support of his party without putting himself into situations where he would risk being involved in violence; for example he could engage in public debate and demonstrations but exercise prudence about situations in which violence was likely or appeared imminent." 18 The Federal Magistrate set out at [6] of his judgment the grounds stated in the second further amended application for review. It is unnecessary to repeat them. It is sufficient to say that two of the grounds were based upon [67] of the RRT's reasons. The substance of what was alleged was that the RRT was in error in imposing a "prudence" or "discretion" requirement and that the RRT erred in finding that the applicant could engage in political activity without putting himself at risk of violence. 19 The learned Magistrate was of the view that the grounds set forth in the second further amended application sought a review of the factual findings made by the RRT. His Honour said that, of course, this was not open to him; see at [7]. 20 The substance of his Honour's reasons is set out at [9] as follows:- "In relation to these proceedings I remain of the view which I expressed in SZBNX, that the interests of justice require an applicant to abide by orders of the court and that it should only be in exceptional cases that a failure to abide by orders to which the applicant, through his legal adviser, has consented should be excused. I am prepared to accept that in the context of an application made by a person seeking asylum the special circumstances could include a recasting of the case in a compelling form. I am not satisfied that this is what the further further amended application does. It appears from a reading of the decision of the Tribunal that most of the independent country information upon which the Tribunal relied was put to the applicant for comment. I am of the view that the only seriously arguable matters are those raised relating to the alleged unlawful imposition of a prudence or discretion requirement. A close reading of the relevant paragraph of the Tribunal's decision at [CB 133] indicates that the Tribunal made a finding of fact that the activity likely to be engaged in by the applicant would not involve him in a real chance of experiencing violence at the levels described in s 91R of the Migration Act. It also found not that he 'could engage in political activity without putting himself into situations where he would be at risk of being involved in violence' but 'would' do so. This is again a finding of fact by the Tribunal not the imposition of a condition. I do not believe that the further further amended application sufficiently recasts the applicant's claim to evidence a compelling reason to set aside the self executing orders, which came into effect by virtue of the applicant's failure to serve the further amended application or to properly particularise it as required by those orders and by Order 54 Rule 2." 21 The reference to SZBNX is to his Honour's decision in SZBNX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 365 which was heard together with the present matter on 7 June 2004. 22 The issues raised by the applicant in support of his application for leave to appeal for the most part repeated those which were contained in the second further amended application. None of them bear any relation to the grounds of appeal stated in the notice of appeal. 23 The applicant raised three main points. The first was that his Honour was in error in failing to find that there was an arguable case of denial of procedural fairness or a breach of s 424A of the Act because "most" but not all of the country information was put to the applicant. 24 This argument must fail because the country information would fall within the exception contained in s 424A(3) of the Act. The applicant failed to identify any item of information which was not put to him. Accordingly, he did not address the question of why the exception would not apply. Nor did he address the question of why in any event the failure to comply with s 424A would constitute jurisdictional error. 25 The applicant submitted that he ought to be provided with a transcript of the hearing before the RRT and in the absence of such a transcript it cannot be established that s 424A was not breached; cf NAOA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 241. He also submitted that some of the country information on which the RRT relied was information which was compiled when the Awami League was in power. 26 However, neither of these propositions disclose an arguable case of error on the Magistrate's part. This is not a case where access to the transcript was required. At very least, it was for the applicant to point to a particular item of country information that the RRT considered to be a reason for affirming the decision and upon which he was not given an opportunity to comment. He did not do so. 27 The question of whether the RRT should have accepted the country information about which the applicant complained was a question of fact for the RRT. 28 The second argument was to the effect that there was an arguable ground of jurisdictional error in that the RRT had imposed a requirement that the applicant's political activity be "prudent" or "discrete"; see Appellant S 395/2002 v Minister for Immigration and Multicultural Affairs (2004) 203 ALR 112 ('S395'). 29 However, the RRT imposed no such requirement. As the learned Federal Magistrate recognised at [8] and [9], the RRT made a finding of fact, based upon the applicant's past experiences, that he would not suffer serious harm amounting to persecution. This was a question of fact for the RRT and no arguable jurisdictional error was disclosed; see Minister for Immigration and Multicultural and Indigenous Affairs v Kord [2002] 125 FCR 68 at [3]; see also Prahastono v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 260 at 271. 30 The applicant submitted that the Magistrate was in error in finding at [8] that the decision of a Full Court in NAEB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 79 ("NAEB") was authority for the proposition that an applicant does not have a well founded fear of persecution merely because he or she will act in a low key or discrete manner. He submitted that in any event the decision in NAEB was to be distinguished because it turned upon the Full Court's view that the RRT had found that the applicant in that case had only a limited commitment to the practice of Falun Gong. 31 In NAEB, North and Lander JJ said at [26]:- "The previous reasons explained why the Tribunal did not regard this requirement as persecution of the particular appellant. The substance of these reasons were that he so lacked commitment to Falun Gong that it would not trouble him to renounce his belief. Similarly, his limited commitment to Falun Gong meant that if he were confined to the practice of Falun Gong in private, his beliefs and practices would not be compromised in a significant way. Viewed in this way, the Tribunal did ask why the appellant would renounce Falun Gong, or practice Falun Gong in private if returned to the PRC. Whilst he may not have done so if the authorities in the PRC did not impose the requirements, the Tribunal found that his compliance with those requirements resulted from his lack of commitment to Falun Gong, not from a fear of the consequences threatened by the authorities. Thus understood, the reasoning in this case does not exhibit the error identified in the majority judgment in S395/2002." 32 It is true, as the applicant submitted, that the RRT found that he had been, and if he returned to Bangladesh, would be an active supporter of the Awami League. But there is nothing in the RRT's reasons which indicates that it fell into the error identified in S395. As the learned Magistrate said at [9], the RRT's finding was one of fact based upon his past activities and it involved an assessment of the likelihood as to his future activities, based upon what he had done in the past. There was no error in this. 33 The third argument was that the RRT failed to apply the tests for persecution stated by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and by McHugh J in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [65]. However, this argument was related to the second argument raised by the applicant and fails for the same reasons. 34 All of the other points raised by the applicant were an attempt to recanvass factual findings. There was no error in the Magistrate's view that the thrust of the second further amended application was to seek a review of those findings. 35 In short, there was no error in the conclusion reached by the learned Federal Magistrate that the second further amended application did not raise any arguable jurisdictional error of the Tribunal. It follows that there can be no error of principle in the Federal Magistrate's refusal to set aside the self-executing orders; see House v The King (1936) 55 CLR 499 at 504-505. His Honour's decision is not attended by sufficient doubt to warrant leave and there is no substantial injustice because the applicant has failed to demonstrate any arguable case of jurisdictional error. 36 Accordingly, leave to appeal must be refused with costs. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.