SZBCA v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 334

FEDERAL COURT OF AUSTRALIA

SZBCA v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 334

SZBCA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1941 of 2004

WILCOX J
24 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1941 of 2004

BETWEEN:	SZBCA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	24 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

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 1941 of 2004

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

JUDGE:	WILCOX J
DATE:	24 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision of Federal Magistrate Driver. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, not to grant a protection visa to the appellant. The Chief Justice directed, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that this appeal be heard by a single judge of the Court.

2. The appellant's application for a protection visa failed because the Tribunal was not satisfied that he was a homosexual.  Accordingly, the appellant failed to satisfy the Tribunal of the underlying basis of his claim of a fear of persecution if returned to his native Bangladesh.  He had claimed that he would be persecuted in Bangladesh as a homosexual.

3. The appellant made clear to me today that he disagrees with the Tribunal's finding about his sexuality.  However, that was a finding of fact.  It is not a finding able to be reviewed in this Court. 

4. When the matter was before the Magistrate the appellant was represented by counsel. Counsel raised a number of matters that were arguably submissions about jurisdictional error.  The Magistrate considered each of these matters.  In a careful judgment he explained why he did not accept any of them.  I see no reason to disagree with anything the Magistrate said about those matters.

5. When the matter came before this Court, the appellant was not represented by a lawyer; he appeared on his own behalf assisted by an interpreter.  The only submission the appellant put to me was that the Tribunal did not properly consider his case.  When asked to justify this statement, the appellant said the Tribunal came to the conclusion that he was not a homosexual.  It is important to note that the allegation of failure to consider the case depends entirely upon the appellant’s dissatisfaction with the Tribunal’s factual finding.

6. As I have said, the jurisdiction of this Court does not extend to a determination of the correctness of the Tribunal’s factual findings. 

7. I explained to the appellant the nature of jurisdictional error, as I had previously done at a directions hearing.  He told me he could put no submission about the law applied by the Tribunal or the procedures followed by it.  In other words, he could advance no argument of jurisdictional error to the Court.  I have carefully considered the Tribunal's reasons for decision.  I see no jurisdictional error in the reasons.  Accordingly, the only course open to me is to dismiss the appeal.

8. The order that I make is that the appeal be dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             4 April 2005

The Appellant appeared in person.
Counsel for the Respondent:	Mr G Johnson
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	24 March 2005
Date of Judgment:	24 March 2005