SZAYJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 172

FEDERAL COURT OF AUSTRALIA

SZAYJ v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 172

SZAYJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1794 of 2004

WILCOX J
25 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1794 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAYJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	25 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s 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 1794 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAYJ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	25 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision of Federal Magistrate Barnes. The Chief Justice has given a direction under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the appeal be heard by a single judge.

2. The learned magistrate dismissed with costs an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal decided to affirm a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refusing an application by the appellant for a protection visa.  The fundamental reason for the Tribunal's decision was that the Tribunal member was unable to accept the main factual claims made by the appellant. 

3. A number of points were put to Barnes FM by the appellant, who appeared on his own behalf assisted by an interpreter.  However, apart from a couple of general matters which were apparently not developed or made relevant to the case in hand, it appears the matters put to the Magistrate by the appellant were submissions as to the Tribunal's findings of fact.  The Magistrate rightly held that, even if these criticisms were valid, they would not support a case of jurisdictional error. 

4. When the matter was before me at a directions hearing, I pointed out to the appellant that the Court was not able to review the Tribunal's findings of fact.  I endeavoured to explain to him the concept of jurisdictional error.  I pointed out that he would have to identify some error of law or failure to follow proper procedures. 

5. When the matter came before me for hearing today, I invited the appellant to put his submissions as to why the Court should conclude that the Magistrate had fallen into error.  In response to this invitation, the appellant handed to me a document in the form of an affidavit.  The affidavit contains a number of assertions about the appellant’s situation while living in his native country, Bangladesh.  It also contains a request for an adjournment of the hearing in order that he might obtain some legal assistance.  The appellant said he would like to obtain the transcript of the Tribunal hearing.  I asked him the purpose of doing this.  He said the transcript would demonstrate the consistency of the story he has given about his problems in Bangladesh.  Perhaps it may do that; I do not know.  However, at most, this might provide some support of the appellant's version of the facts.  I think not much support; the Tribunal did not disbelieve the appellant because of inconsistencies in his story at various times of the processing of his application for a protection visa.  The Tribunal disbelieved his refugee claim because of the lack of documentary evidence in relation to certain matters that might have been expected to be able to be supported in that way; and also because of what the Tribunal saw as the inherent improbability of some of the matters asserted by the appellant.

6. The Tribunal's decision was given on 26 May 2003.  That was one year and nine months ago.  It is unacceptable for a person who believes that his case would be assisted by obtaining the transcript of the Tribunal hearing, and/or legal advice, to wait for such a lengthy time before taking any action to obtain that assistance.  I informed the appellant that I was not willing to grant an adjournment of the matter. 

7. After I did this, I asked the appellant whether there was any other submission that he wished to put.  I again explained to him what was meant by jurisdictional error.  He was unable to put any submission of jurisdictional error. 

8. I have considered the Tribunal's reasons for decision.  I have also read the carefully compiled reasons for judgment of Barnes FM.  I express no opinion about the Tribunal's findings of fact.  It is not the function of the Court to form an opinion about that matter. However, it seems clear that there is no jurisdictional error in the Tribunal's decision.  It also seems clear that Barnes FM dealt with the submissions that were put to her in an unexceptional way.  I agree with her that no jurisdictional error appears in this case.  The appeal should be dismissed. 

9. The order of the Court will be that the appeal be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             23 March 2005

The Appellant appeared in person.
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	25 February 2005
Date of Judgment:	25 February 2005