SZASH v Minister of Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1700

FEDERAL COURT OF AUSTRALIA

SZASH v Minister of Immigration & Multicultural & Indigenous Affairs [2004] FCA 1700

SZASH v MINISTER OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1402 of 2004

WHITLAM J
15 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1402 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZASH APPELLANT
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	15 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed with costs.

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 1402 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZASH APPELLANT
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WHITLAM J
DATE:	15 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court (SZASH v Minister of Immigration [2004] FMCA 587) dismissing an application for review of a decision handed down by the Refugee Review Tribunal (‘the Tribunal’) on 27 May 2003. The Tribunal’s decision affirmed the decision of a delegate of the Minister refusing the appellant a protection visa.

2. The appellant has filed an amended notice of appeal which contains the following two grounds:

   ‘1.The Tribunal exceeded its jurisdiction in failing to accord [the appellant] procedural fairness, as required under section 424(1), section 418(3) of the Migration Act 1958.

   2. The Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act 1958. Thus, the procedures that were required by the Act or regulations to be observed in connection with the making of the decision were not observed. [The appellant’s] case is identical with the Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002).’

   The appellant has filed a written submission in support of his appeal.  However, that submission does not engage, in terms, with the reasons for judgment of the Federal Magistrate.  Although the submission is signed by the appellant, I strongly suspect he is not the author of the document.  It contains references to cases in a way that suggests the author has some passing familiarity with the law on this topic.  (I note that the appellant was represented before the Tribunal by a migration agent with legal qualifications, and that parts of this submission echo the language employed in the documents submitted to the Tribunal.)  The submission is fundamentally flawed not only because it fails to engage with the reasons for judgment of the Federal Magistrate, but also because it takes issue with aspects of the Tribunal’s decision that were not agitated in that Court and which plainly go to the merits of the Tribunal’s decision.

3. As to the first ground of appeal, which raises the topic of procedural fairness and s 424(1) and s 418(3) of the Migration Act 1958, the appellant submits that the Department did not provide the Tribunal with the information relied upon by the Minister’s delegate.  The appellant filed no evidence to support such an assertion in the Federal Magistrates Court, and, as the Federal Magistrate noted (at [23]), the Tribunal states in its reasons that it had regard to the material referred to in the delegate’s decision. 

4. The reference to s 424(1) in the first ground of appeal is puzzling.  I assume it is a reference to s 424A(1) given that the written submission primarily cavils with the Tribunal’s use of country information.  The Federal Magistrate referred to authority on that issue and held that any failure by the Tribunal to comply with s 424A(2) did not render the decision invalid or constitute any form of jurisdictional error: NAHV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 102 at [23]. Subsequent authority such as Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264 establishes that it is only information specifically about a person such as the appellant, and not information about a class of persons of which the appellant is a member, that is required to be disclosed pursuant to s 424A(1). The Federal Magistrate correctly disposed of this ground, and no more recent elucidation of the law on this topic suggests that he was in error. Furthermore, contrary to the appellant’s written submission, s 422B of the Act does not apply to this case.

5. The second ground of appeal relates to the High Court decision in Muin v Refugee Review Tribunal (2002) 76 ALJR 966. This echoes a ground seen before in this Court and raised without any particular reference to the circumstances of the case. The Federal Magistrate observed (at [29]-[30]):

   ‘Neither the amended application, written submissions nor oral submissions contain any evidence which suggest that the applicant was misled into believing that the Tribunal had considered any particular relevant information which resulted in the applicant being denied the opportunity to ensure that that material was placed before the Tribunal.

   The information, that the applicant is claiming he should have been given the opportunity to ensure was before the Tribunal, has not been identified…’

   The Federal Magistrate then correctly dealt with any possible application of the principle stated in Muin, and no error is revealed on the part of the Federal Magistrate on this ground of appeal.

6. So far as the other matters in the written submission are concerned, I need only say that they do not raise any arguable question of an error of a jurisdictional sort in relation to the Tribunal’s decision.   The Federal Magistrate did not have to deal with them and nor in the circumstances, notwithstanding the misfortune of the appellant in appearing for himself, do I.  No error has been demonstrated in the judgment of the Federal Magistrate and no fresh ground has been raised.  Accordingly, the appeal must be dismissed with costs.

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

Associate:

Dated:             21 December 2004

The appellant appeared in person

Counsel for the respondent:	Ms Rachel Francois
Solicitors for the respondent:	Clayton Utz
Date of hearing:	15 December 2004
Date of judgment:	15 December 2004