SZDDH v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR JUDGMENT 1 In this matter the respondent has filed an Objection to Competency to a purported appeal against a decision of a Federal Magistrate given on 10 September 2004, which dismissed the application with costs. The Objection to Competency is based on the fact that his Honour's judgment was interlocutory in nature and no application has been made for leave to appeal. 2 A Notice of Appeal setting out nine grounds was filed on behalf of the applicant on 23 September 2004. Given the relatively short period of time between the judgment and the filing of the Notice of Appeal, and the importance of the issues so far as the appellant is concerned, I would have been disposed to grant him leave to file an Application for Leave to Appeal out of time if it is shown to have any merit. I will treat the Notice of Appeal as an Application for an extension of time for leave to appeal in these reasons. It is necessary to consider whether granting leave would serve any useful purpose and in particular whether any arguable grounds have been made out. 3 I have read the Reasons for Decision of the Refugee Review Tribunal ("the Tribunal") in this matter, and the Judgment of the Federal Magistrate, together with the applicant's outline of submissions and the respondent's outline of submissions in support of the Objection to Competency. I have also heard oral submissions from both the applicant and the respondent. 4 When the matter came on for hearing before me, the solicitor for the respondent carefully outlined the history of the matter and referred to the relevant sections of the Tribunal's reasons and his Honour's judgment. 5 In his oral submissions, the applicant raised the point that his agent had not given him a proper opportunity to appear on the hearing before the Tribunal. This point was carefully considered by the Federal Magistrate, and was rejected, having regard to a decision of this Court in B41 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 30, where it was held that a prosecutor cannot complain that his actions, taken in reliance upon advice received from his immigration adviser, led to his being denied procedural fairness. 6 I note also that this is a case where there had been extensive indulgence granted to the applicant on several occasions in relation to non-compliance with directions that were given to prepare the matter for hearing. I am not persuaded that any error of principle has been demonstrated in the decision of the Federal Magistrate. 7 A second matter raised by the applicant was that there is a real threat of persecution on the basis of his association with the Bangladesh National Party ("BNP"). The basis on which the Federal Magistrate proceeded was that because the applicant had not appeared at the hearing, it was not possible for him to obtain detailed information as to the basis on which this claim was made. The Federal Magistrate relied on general country information to reject this claim. In my view, there has been no error of law demonstrated in the reasons. In addition, the applicant raised a new issue before me this morning, with the assertion that his wife had been tortured three months ago, and taken to hospital, where she remains. No attempt has been made to provide any evidence to this effect, and such evidence was not before the Tribunal. 8 It is significant in relation to this claim that the applicant has filed six pages of written submissions raising a number of considerations. These submissions appear to cut and paste a series of submissions that have been made in relation to other matters. In particular, there are clearly inapplicable references to the date of the Tribunal's decision to a suggestion that the Tribunal invited the applicant to give oral evidence, and to an indication that the applicant attended the hearing to give oral evidence in support of his protection claims. The submissions, which were filed very recently, make no reference to any torture or detention of the applicant's wife. 9 Nothing of any substance is raised in the applicant's written submissions filed on 4 November 2004 and nothing has been put before me to persuade me that the Tribunal or the Federal Magistrate fell into any error of law or principle. Accordingly, having regard to the history of the matter as outlined in the decision of the learned Magistrate, I am satisfied that there is no substance in the grounds of the purported appeal, and that no useful purpose would be served by granting an extension of time for leave to appeal or for granting leave to appeal. 10 Accordingly, I reject the appeal from the decision of the learned Magistrate on the basis that it is incompetent, and I order the applicant to pay the costs of this application. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.