SGQB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCAFC 11

0FEDERAL COURT OF AUSTRALIA

SGQB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 11

MIGRATION – no arguable grounds – no question of principle

Migration Act 1958 (Cth)

SGQB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

No S 214 of 2002

SPENDER, DOWSETT, SELWAY JJ
ADELAIDE
11 FEBRUARY 2003

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 214  OF 2002

BETWEEN:	SGQB APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	SPENDER, DOWSETT, SELWAY JJ
DATE OF ORDER:	11 FEBRUARY 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the costs of the respondent, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 214  OF 2002

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

JUDGES:	SPENDER, DOWSETT, SELWAY JJ
DATE:	11 FEBRUARY 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

SPENDER J:  

1. This is an appeal from the dismissal on 23 August 2002 by a single judge of this Court, Mansfield J, of an application to review a decision of the Refugee Review Tribunal, (“the Tribunal”) given on 28 June 2001.  The Tribunal had affirmed a decision of a delegate of the respondent given on 28 March refusing to grant to the applicant a protection visa for which he had applied on 20 January 2001, shortly after his arrival in Australia under the Migration Act 1958 (Cth) (“the Act”).

2. In the course of his Honour’s reasons for judgment, Mansfield J considered criticism that had been made of the quality of interpretation that had been afforded the present appellant in the hearing before the Tribunal.  In a careful and detailed judgment, his Honour reached the conclusion expressed in par 18 of his reasons, that:

   “Overall, in my judgment, the complaints based upon the quality of interpretation before the Tribunal do not demonstrate the Tribunal did not comply with s 425(1) of the Act in the circumstances.”

1. In respect of the second ground of review, namely that there was no evidence or other material to justify the making of the decision, his Honour considered the independent country information to which the applicant had referred and concluded in par 25:

   “I do not think it demonstrates that, prior to the latter part of 1998, the Taliban were not anti‑Shia, or that it did not engage in persecutory conduct towards Shias and Hazaras.  It certainly demonstrates, as the applicant himself described, and as the Tribunal itself accepted, that the Taliban attitude toward Hazaras and Shias in Afghanistan led to a very brutal persecution after the battle of Mazar-e-Sharif.”

In par 27 his Honour concluded:

“In my judgment the applicant has simply not established that the ‘particular fact’, namely that the Taliban did not have a depth of hatred for Shia at all times including prior to the latter part of 1998, or in various ways give vent to that hatred, did not exist.  That is the foundation upon which the claim based on s 476(1)(g) and 476(4)(b) is asserted.  In my judgment it is not made out.”

and accordingly dismissed the application.

1. The notice of appeal filed on 11 September 2002 articulates no error of law by the trial judge and, unfortunately, when this appeal was called on, the appellant through an interpreter was not able to advance or articulate any basis on which the trial judge had fallen into legal error.  The probability is that the present appellant is not aware of the obligations he must fulfil before he can have an appeal succeed before a Full Court of the Federal Court.  In any event, there has been no material put before the Court to impugn in the slightest the correctness of the primary judge’s judgment.  In those circumstances, the appeal has to be dismissed, with costs.

DOWSETT J:  

1. The appellant having failed to identify any error in the judgment which is the subject of this appeal, the appeal must be dismissed.

SELWAY J: 

1. I agree.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Dowsett, Selway .

Associate:

Dated:             20 February 2003

The Appellant appeared on his own behalf
Counsel for the Respondent:	Mr M. Roder
Solicitor for the Respondent:	Sparke Helmore Solicitors
Date of Hearing:	11 February 2003
Date of Judgment:	11 February 2003