SZAQR v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1687

FEDERAL COURT OF AUSTRALIA

SZAQR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1687

SZAQR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1051 OF 2004

EMMETT J
30 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1051 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAQR APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	30 AUGUST 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

(1)       The appeal be dismissed.

(2)       The appellant pay the respondent’s costs of the appeal in the sum of $3000.

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	N1051 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	EMMETT J
DATE:	30 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Bangladesh.  He arrived in Australia on 26 April 2001, and on 2 May 2001 he lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’).

2. On 10 May 2001 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) refused to grant a protection visa and on 30 May 2001 the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision.  On 9 April 2003 the Tribunal affirmed the decision not to grant a protection visa.  The Tribunal handed down its reasons for decision on 1 May 2003.

3. The appellant then applied to the Federal Magistrates Court for relief in respect of the Tribunal’s decision pursuant to s 39B of the Judiciary Act 1903 (Cth). On 24 June 2004 the Federal Magistrates Court ordered that the application be dismissed and that the appellant pay the Minister’s costs and disbursements fixed in the sum of $4,500. On 6 July 2004 the appellant filed a notice of appeal to this Court. On 30 July 2004 the matter came before me for directions and I listed the matter for hearing today. The Chief Justice has directed that the matter be heard by a single Judge. The grounds specified in the amended application to the Federal Magistrates Court were that the purported decision of the Tribunal was not a decision with any lawful effect because it was infected by jurisdictional error.

4. The jurisdictional error was particularised in the following way:

   (a)the Tribunal did not comply with the mandatory obligations contained in Section 424A of the Act;

   (b)the Tribunal had regard to information that was part of the reasons for its decision;

   (c)this information was taken into account in rejecting the appellant’s credibility;

   (d)the Tribunal did not give the appellant notice of the particulars of the information in the manner required by s 424A(1)(a) and s 424A(2)(a) of the Act;

   (e)the Tribunal did not ensure as far as is reasonably practicable or at all that the appellant understood why all of that information was relevant to the review as required by s 424A(1)(b) of the Act;

   (f)none of that information is excluded by s 424A(3)(a).

   The particulars of the grounds specified six pieces of information that were alleged to have been part of the reason for the Tribunal’s decision. 

5. The appellant is not represented by a legal practitioner, appearing in person with the assistance of an interpreter.  He filed written submissions in support of his appeal and made no oral submissions in addition to that.  The outline of submissions do not particularise with any specificity the grounds upon which it is said that the Federal Magistrates Court fell into error. 

6. The Federal Magistrate addressed the claims made in the amended application, namely that the Tribunal did not comply with the mandatory obligations contained in s 424A. His Honour observed that the appellant simply relied on the amended application and chose not to make any oral submissions. His Honour concluded that there was in reality no breach of s 424A(1) because the information that was material to the outcome of the application was, in fact, disclosed. His Honour accepted the written submissions of counsel for the Minister that in the absence of any unfairness, the failure to convey the relevant information by the method prescribed by s 424A(2) of the Act is not jurisdictional error.

7. The question for the Court is not whether a letter was sent in the form required by s 424A(2), but rather whether the substantial requirements of s 424A(1) were complied with. Section 424A(1) relevantly provides that subject to s 424A(3) the Tribunal must give to an applicant in the way that the Tribunal considers appropriate particulars of any information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review. Section 424A(3) provides that the section does not apply to information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member.

8. The six pieces of information identified in the application are all what are generally referred to as independent country information.  There is nothing that relates specifically to the appellant.  Counsel for the Minister submitted to the Federal Magistrates Court that the only information that appears to have been taken into account by the Tribunal in rejecting the appellant’s credit was information suggesting that the relevant political party of which the appellant claimed to be a member was virtually non-existent as at 1999/2000 and that in 1996 the party’s main leaders had been arrested.

9. In fact, the Tribunal put both of those matters to the appellant and made sure that he understood how they were relevant.  The Federal Magistrate accepted those submissions.  The appellant filed no evidence in support of his contention that the Tribunal took no steps to ensure that he understood what was being put.  The learned Federal Magistrate also went on to consider whether there was any basis upon which it could be said that the Tribunal failed to afford procedural fairness at common law.  His Honour accepted that the Tribunal was under an obligation to disclose to the appellant the information that led the Tribunal to the view that his claims were not credible.

10. His Honour concluded that that is precisely what the Tribunal did and that it followed that there was no breach by the Tribunal of its obligation to afford procedural fairness under the general law.  In his notice of appeal the appellant specified the following as grounds:

    ‘(1)I am totally disappointed that the Federal Magistrates Court Driver FM has dismissed my review application.

    (2)There has been a breach of natural justice occurred in making the decision by the tribunal.

    (3)The tribunal decision was unjust and was made without taking into account the full consideration of the circumstances and the consequences of the claims.

    (4)      There was no other material or evidence to justify the decision.

    (5)The Tribunal cited so many out dated and partial reports, which are not even relevant to my claims in the application.

    (6)The Tribunal decision… was infected by jurisdictional error.  Such as -

    (a)The Tribunal did not comply with the mandatory obligations contained in section 424A of the [Act].

    (b)The Tribunal did not ensure… that I understood why all those references and information were relevant to my review application as required by section 424A(1)(b) of the [Act].

    (c)The Tribunal did not give me the Particulars of the information or references in the manner required by section 424A(1)(a) and 424(2)(a) of the [Act].’

11. Those grounds appear to be no more than an assertion that the Federal Magistrates Court did not accept the assertions made in the amended application.  The appellant relied on a written outline of submission filed with his notice of appeal of 6 July 2004.  The submission makes general assertions which coincide with the grounds set out in the notice of appeal.  The appellant goes on to cite the proposition, which is incontestable, that if:

    ‘[an] administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise, or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error, which will invalidate any order or decision of the tribunal which reflects it.’

12. The submissions then make four further assertions as follows:

    ‘(1)The tribunal falls into an error of law - The Tribunal failed to consider my application with lawful effect rather it was infected by some jurisdictional error -

    (2)The tribunal asked itself wrong questions - generalised my claims with others from Bangladesh, whereas I applied to the department for [a] protection visa with my claims as an individual -

    (3)The tribunal has ignored some relevant matter such as - my persecution issue, whereas the tribunal made references of some partial reports and different case references, which I find has no relevance to my claims…

    (4)Though the Tribunal referred about some partial report on Bangladesh to assess my protection visa application to take advantage of [its] generalised and conventional decision… the Court could not consider that there is [a] breach of natural justice and jurisdictional error…’

13. Nothing was said in support of those assertions.  I am unable to find any error on the part of the Federal Magistrates Court in the way in which it dealt with the application before it.  It follows that the application should be dismissed with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            17 December 2004

The applicant appeared in person
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	30 August 2004
Date of Judgment:	30 August 2004