SZBAC v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1340

FEDERAL COURT OF AUSTRALIA

SZBAC v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1340

MIGRATION – appeal from a Federal Magistrate – dismissed

SZBAC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 701 of 2004 

HILL J
6 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 701 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBAC APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	6 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent Minister’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	N 701 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	HILL J
DATE:	6 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HILL J:

1. The appellant appeals against a decision of Mr Barnes FM, dismissing his application for judicial review of a decision of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (“the Minister”) refusing to him the grant of a protection visa. 

2. The learned Magistrate set out in her reasons briefly the claims which the appellant had made to the Refugee Review Tribunal (“the Tribunal”).  Those claims were largely rejected by the Tribunal as being a fabrication or fabrications, particularly the claim that concerned extremists who, apparently, were in the appellant's house and in circumstances where the appellant said that he arranged for a doctor, or in another version, a pharmacist to give assistance.

3. The Magistrate held that the appellant had shown no jurisdictional error on the part of the Tribunal, and accordingly dismissed the application.  I have read the decision of the Tribunal carefully because the appellant was not legally represented before me or, for that matter, before the Magistrate.  There is nothing in the Tribunal's decision which suggests a jurisdictional error on its part, nor is there anything in the decision of the Magistrate that suggests that her Honour fell into error. 

4. The appellant filed a notice of appeal, apparently before having received a copy of the Magistrate's decision.  That notice of appeal was supplemented by a document entitled:  “Outline of Applicant's Submission” which the appellant said had been prepared for him by friends.  The outline suggests a number of matters not raised before the Magistrate.  These included a claim that the Tribunal member demonstrated actual bias, a claim that the case was one similar to Muin v Refugee Review Tribunal (2002) 190 ALR 601, and a claim that the Tribunal acted in bad faith. It is also suggested that the Tribunal's decision was made in breach of the rules of natural justice, although it is unclear whether this is merely a repetition of the claim that the case is similar to Muin or whether it is an independent claim.

5. The only matter in the document and notice of appeal which might be thought to be a ground of appeal, albeit not particularised, was a statement that the appellant did not agree with the learned Magistrate's decision as none of the matters, apart perhaps from the last, was argued before the learned Magistrate.  The appellant would need leave now to raise the matters on appeal.  He did not seek that leave, although alerted to the need of it, but in any event, there is nothing in what the appellant has said that would suggest there was any substance to the new grounds such that leave should be granted to him.

6. The appellant's real complaint was that the Tribunal had failed to investigate his case properly.  He said that he had been unable to provide evidence about his case to the Tribunal.  He said that he had now located a person, apparently an employee, who had worked under him, such that if he were now given time to obtain documents and present them to the Tribunal, his case would be clear.  He said that if the Tribunal were to rehear his case with the benefit of the evidence which he expects to be able to obtain, the Tribunal would come to the conclusion that he was, in fact, telling the truth.

7. He said that he was unable to return to India where he had no family or friends.  He suggested that age would play a part in this, that he didn't know how long he had to live but wanted to live peacefully in Australia until he died.  None of these matters in any way suggests that the Tribunal made a jurisdictional error in deciding the case.  It is for an applicant to the Tribunal to put before it all relevant material.  If it happens that that material is not available, it is always possible for an applicant to seek an adjournment.  Whether that would be granted would be a matter for the Tribunal to consider.  No such application was made.

8. It may well be the case that at the time of the Tribunal’s hearing, the appellant did not believe he would be able to obtain the evidence in any event.  Whether this be the case or not, the existence of evidence of the kind which the appellant now suggests he can obtain provides no ground for this Court to set aside the decision of the Tribunal.  Whether the Tribunal has committed a jurisdictional error will depend upon the course the proceedings taken in the Tribunal.  There would be jurisdictional error where, for example, the Tribunal denied to the appellant natural justice or where it failed to consider his case and, thus, not exercise jurisdiction, or where it took into account irrelevant matters or failed to take into account relevant matters, or perhaps where it incorrectly interpreted the law in its application to the facts before it.  Failure to take into account matters not before it does not constitute jurisdictional error.

9. Neither this Court nor the Magistrates Court has jurisdiction to set aside a decision of the Tribunal merely on the ground that a further hearing on, perhaps, different evidence might produce a different outcome.  I would, accordingly, dismiss the appeal.

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

Associate:

Dated:            28 October 2004

Applicant appeared in person
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 October 2004
Date of Judgment:	6 October 2004