SZALB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 778

FEDERAL COURT OF AUSTRALIA

SZALB v Minister for Immigration & Multicultural and Indigenous Affairs [2004] FCA 778

MIGRATION – no point of principle

Migration Act 1958 (Cth)

SZALB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 505 OF 2004

MOORE J
15 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 505 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZALB APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	15 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application to amend the application for review and the notice of appeal be dismissed.

2.The appeal be dismissed.

3.The appellant pay the costs of the respondent.

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	N 505 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZALB APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	15 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of a Federal Magistrate of 24 March 2004 dismissing an application for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal").  The appellant applied to the Federal Magistrates Court for judicial review of a decision of the Tribunal of 20 March 2003 dismissing an application for review brought by the appellant against a decision of a delegate of the Minister for Immigration & Multicultural Affairs ("the Minister") to refuse to grant the appellant a protection visa.

2. During the hearing of the appeal, I made the following ruling on an application to amend (the text has been edited):

   I do not propose to allow [the appellant] to amend the application to raise the grounds that he seeks to raise by the amended notice of appeal.  They were not grounds raised before the Magistrate and [counsel for the Minister] rightly says, in opposing the amendments, that evidence may have been led before the Magistrate which might have had a bearing upon the grounds now sought to be raised.
   There is nothing to suggest that the Muin v Lie ground, which is particular one in the amended notice of appeal, has any factual foundation.  Insofar as particular 2 is concerned, it appears to be a mixture of a failure to comply with s 424A and a denial of procedural fairness.
   While it is true that the Tribunal rejected two documents proffered by [the appellant] and so much is apparent from page 213 of the appeal book, it did so in circumstances where it appears to have raised with [the appellant], at least in general terms, the notion that people in his position, namely asylum seekers from Bangladesh, furnished fraudulently created documents in support of their asylum applications.
   Plainly enough, relevant evidence could have concerned what precisely the Tribunal said to [the appellant] on this topic.  Additionally, these amendments are sought today in circumstances where there has been no notice to the [Minister] of these fresh grounds.  I refuse leave to amend the application and consequentially refuse leave to amend the notice of appeal to raise the grounds identified in the draft notice of appeal filed on 2 June 2004.

3. The application filed in the Federal Magistrates Court raised two grounds.  The first was that the Tribunal did not take into account the appellant's evidence and therefore made an error of law.  The second was that the Tribunal did not investigate the appellant's case.  In his reasons the Magistrate rejected both grounds and noted that the appellant's case had, in substance, failed before the Tribunal because the Tribunal did not accept the appellant was a credible witness, and that the Tribunal did not accept the appellant's account of his circumstances in Bangladesh before arriving in Australia.

4. It is not apparent to me that the Magistrate erred in reaching the conclusions he did, nor erred in making the orders he did, namely, an order dismissing the application with costs.  In those circumstances the order I should make is an order dismissing this appeal and ordering the appellant to pay the respondent's costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             21 June 2004

Counsel for the Applicant:	The Appellant appeared in person.
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	15 June 2004
Date of Judgment:	15 June 2004