SZAUB v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1468

FEDERAL COURT OF AUSTRALIA

SZAUB v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1468

SZAUB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1480 of 2004

BRANSON J
8 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1480 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAUB APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	8 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1480 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	BRANSON J
DATE:	8 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court constituted by Lloyd-Jones FM.  The learned Federal Magistrate dismissed the appellant's application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal had upheld a decision of a delegate of the respondent that the appellant was not entitled to a protection visa.  

2. The claims advanced by the appellant are set out in the reasons for decision of the Tribunal.  They are also summarised in the reasons for judgment of the Federal Magistrate.  It is not necessary for me to set them out again. 

3. The Tribunal took an adverse view of the appellant's credibility.  It is noted in particular that his application was similar in matters of detail to several others made by individuals using the same adviser as he was using.  Some of the matters to which the Tribunal referred related to the supporting documentation relied on by the appellant.  I interpolate that it was presumably for that reason that, as the appellant has mentioned today, the Tribunal member questioned the appellant about how much he had paid his adviser and asked to see his bank statement.  The Tribunal member also found aspects of the appellant's evidence inconsistent.  For example, his explanation of how he obtained a passport with relative ease was found to be inconsistent with his explanation of why he could not have relocated within Bangladesh. 

4. The Tribunal concluded that the claims made by the appellant, including those made for the first time at the hearing before the Tribunal, had no credibility.  The Tribunal thus found that the claims provided no basis for a conclusion that the appellant faced a real chance of persecution in Bangladesh.

5. The appellant's application for judicial review of the Tribunal’s decision made a number of unparticularised complaints about that decision.  It appears that his written submissions to the Federal Magistrates Court, like his written submissions on this appeal, bore little, if any, relationship to the decision under review.  The Federal Magistrate did not find them helpful and the appellant did not supplement them by oral submissions.  Nonetheless, the Federal Magistrate, very properly, gave careful consideration to the reasons for decision of the Tribunal.  He concluded that the decision of the Tribunal was not affected by jurisdictional error.  His Honour therefore proceeded on the basis that the decision was a privative clause decision and not open to review. 

6. The appellant's notice of appeal to this Court makes complaint about the failure of the Federal Magistrate to find that the Tribunal had made errors of law.  It also complains that the Magistrate did not find that the appellant had been denied procedural fairness by the Tribunal and calls in aid the decisions of the High Court in the cases of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601. No particulars are given of the grounds of appeal nor has the appellant provided any evidence in support of a claim of the kind considered by the High Court in the cases of Muin and Lie.

7. The appellant's written submissions to this Court appear to be a collage of paragraphs taken from documents prepared for other cases.  A telling feature in this regard is that one of the paragraphs refers to the appellant as though he were a woman.  The written submissions cannot be given a sensible meaning.  The appellant today has told me that the document was prepared for him by a friend.  The appellant has read to me today from another document.  By that document, the appellant raises his concern that the Tribunal member did not believe him and did not believe that he feared persecution.  These concerns do not, of course, constitute a ground of appeal against the decision of the Federal Magistrate.

8. The appellant also complained that the Tribunal had made a decision before hearing from him.  This would be a serious complaint and would cause the decision of the Tribunal to be affected by jurisdictional error if it could be substantiated.  However, the only matter that the appellant could draw to my attention in support of this submission is that the Tribunal delivered its decision immediately after it conducted its hearing.  That does not establish that the Tribunal had made up its mind before commencing a hearing.  Courts and Tribunals commonly deliver judgments straight away in clear cases where they are satisfied that they have heard and considered all of the submissions and relevant evidence.

9. It was also contended by the appellant that the Tribunal acted in bad faith because it did not believe his documents.  The Tribunal gave reasons for failing to accept the genuineness of the documents provided to it by the appellant. The reasons included that the documents looked very similar to documents provided by other applicants for protection visas in other cases.  The contention of bad faith is not substantiated.

10. Other matters raised by the appellant go to the merit of his claim to be entitled to a protection visa.  The merit of the appellant’s claim to be entitled to a protection visa is not a matter to which this Court is entitled to give consideration. 

11. I have carefully considered the reasons for decision of the Federal Magistrate as well as the reasons for decision of the Tribunal.  Having done so, it is apparent that the Federal Magistrate gave careful consideration to the decision of the Tribunal.  His Honour, in my view, was plainly right in concluding that no error of jurisdiction affected that decision.

12. This appeal must be dismissed.  I so order.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             12 November 2004

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	8 November 2004
Date of Judgment:	8 November 2004