SZANB v Minister for Immigration and Citizenship

[2008] FCA 814

FEDERAL COURT OF AUSTRALIA

SZANB v Minister for Immigration and Citizenship [2008] FCA 814

Federal Court of Australia Act 1976 (Cth) s 24

SZANB v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2213 OF 2007

REEVES J
1 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2213 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZANB
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	1 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Appeal from the decision of Federal Magistrate Turner dated 25 October 2007 be dismissed.

2.The applicant pay the first respondent’s costs fixed in the sum of $2,100.00.

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	NSD 2213 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZANB
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	1 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an appeal under section 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) against the judgment of Turner FM, delivered 25 October 2007. Turner FM dismissed the applicant’s application for review of the tribunal’s decision of 27 March 2003. In the Federal Magistrate’s decision, he appears to have dealt with the application for review before him on the merits and dismissed it, at paragraphs 6 to 13 inclusive of his decision. He then appears to have dealt with the first respondent’s application that the application for review be dismissed under order 13.10 of the Federal Magistrates Court Rules 2001, on the grounds that it was an abuse of process and/or that it was frivolous or vexatious and dismissed the application for review afresh on each of those grounds, at paragraphs 15 and 16.  The latter are obviously interlocutory decisions, but the former is a final decision.

2. Whilst it is a somewhat paradoxical result given the Federal Magistrate’s conclusion that the application for review was an abuse of process, I will deal with the matter as an appeal from the Federal Magistrate’s decision to dismiss the application for review on the merits.  I should add that the notice of appeal is directed to the decision on the merits, albeit the merits of the tribunal’s decision rather than the Federal Magistrate’s decision and that the notice of appeal ignores the interlocutory decisions.  At the hearing before me the applicant appeared in person and represented himself and Ms Kantaria appeared for the first respondent.

3. The applicant made oral submissions through an interpreter and Ms Kantaria made written and oral submissions.  The history of this matter is lengthy.  It is set out at paragraph 3 of the Federal Magistrate’s decision.  In summary, including the decision appealed from and this appeal, the applicant has applied to or appealed to the Tribunal twice, the Federal Magistrates Court three times, the Federal Court of Australia three times and the High Court once.  This is the ninth occasion upon which his case has been reviewed.  In an appeal of this kind the applicant has to satisfy me that the Federal Magistrate made some identifiable error in his decision.  Ground 1 of the notice of appeal is that:

   ‘The Refugee Review Tribunal constructively failed to exercise its jurisdiction under the Act.’

   Particulars are given that:

   ‘There was no evidence to support the Refugee Review Tribunal’s finding that there were many other parts in Bangladesh in which it would be reasonable for me to relocate.’

4. The Federal Magistrate dealt with that issue at paragraph 8 of his decision and concluded, after reviewing the tribunal’s decision, that the tribunal’s findings in that regard were a matter for the tribunal as to what evidence it accepted or rejected.  In my view, that is correct and there is no demonstrated error in that ground.  Ground 2 of the notice of appeal states:

   ‘The Refugee Review Tribunal acted in excess of its jurisdiction.’

   Particulars are given:

   ‘There was no evidence to support the Refugee Review Tribunal’s finding that the relocation in other part of the country would not have deprived me from the satisfaction of the basic norms of civil, political and socio-economic human rights.’

5. The Federal Magistrate dealt with that issue at paragraphs 9 to 10 of his decision.  At paragraph 9, after reviewing the tribunal’s decision, he concluded that the finding of fact in this regard was properly open to the tribunal on the material before it and it was therefore not open to review.  At paragraph 10 he reached a similar conclusion, saying that the finding was a matter for the tribunal and in particular as to which evidence it accepted or rejected.  In my view there is no demonstrated error on this ground.  Finally, the notice of appeal in ground 3, states and I quote:

   ‘The Refugee Review Tribunal denied me natural justice.’

   Particulars are given:

   ‘Being a key witness of murder and having an obvious chance of persecution in future the tribunal treated the reason as not being a convention reason.’

6. The Federal Magistrate dealt with that at paragraph 11 of his decision.  He concluded that the finding of fact made by the tribunal was open to it on the evidence and that the tribunal’s reasoning that this was not a convention reason was correct.  In my view there is no demonstrated error on this ground.  In summary, there being no demonstrated error on any of the grounds of appeal I therefore order that the applicant’s appeal from the decision of Turner FM, delivered on 25 October 2007, be dismissed.  I also order that the applicant pay the first respondent’s costs fixed at $2100.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice REEVES.

Associate:

Dated:        30May 2008

Applicant:	In person
Counsel for the First Respondent:	Ms S Kantaria
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	1 February 2008
Date of Judgment:	1 February 2008