SZBMD v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1766

FEDERAL COURT OF AUSTRALIA

SZBMD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1766

SZBMD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1671 of 2005

WILCOX J
2 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1671 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBMD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	2 DECEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The notice of motion of 22 November 2005 be dismissed with costs fixed at $600.00.

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 1671 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	WILCOX J
DATE:	2 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This matter is an appeal from an order made by Federal Magistrate Driver on 31 August 2005.  The Chief Justice directed that the appeal be heard and determined by a single judge.  The matter was listed for hearing before me on 18 November 2005.  However, the appellant did not appear.  Accordingly, I made an order dismissing the appeal with costs.

2. On 22 November 2005, the appellant filed a notice of motion seeking orders that my order of 18 November 2005 be set aside and that ‘the appellant be allowed to argue his case in full’.  The notice of motion made it clear that he sought to set aside both the magistrate's order and the Refugee Review Tribunal’s decision affirming the decision of a delegate of the Minister to refuse him a protection visa. 

3. In an affidavit the appellant explained his failure to attend on 18 November by saying he was willing to attend the hearing, however his health was not good on that day.  He said that he was sick and not able to talk and move due to pain and he saw a doctor.  He attached to his affidavit a copy of a medical certificate certifying the appellant was suffering from ‘viral URTI’ and would ‘not be fit for duty’ from 18 November to 20 November 2005 inclusive.

4. The medical evidence is less than compelling.  However I would not reject the appellant’s request to set aside the summary dismissal order purely for that reason.  I think the more significant issue is whether there is any arguable case of jurisdictional error. 

5. The hearing proceeded in the Federal Magistrates Court upon the basis of an amended application that had been filed in that Court on 15 April 2004.  That document raised two grounds for the application, both of which were addressed by the magistrate.

6. The first ground was stated as a failure by the Tribunal to take into account a relevant consideration.  However, the ground seems to have been argued, at least primarily, by reference to the decision of the delegate of the Minister rather than of the Tribunal.  The document did broadly assert, by way of particulars:

   ‘The Tribunal failed to consider in assessing the chance of the applicant being arrested and/or persecuted on his return to Bangladesh based on his genuine claims.’

7. It is obvious from the Tribunal's reasons that this broad assertion is incorrect.  The question identified in the assertion is the very matter that the Tribunal did consider.

8. The second ground identified in this document was stated in this way:

   ‘The Tribunal's satisfaction that the applicant is not a refugee was not based upon reasoning which provided a rational or logical foundation for this belief.’

9. This general statement also was not developed in argument before the magistrate.

10. The magistrate dealt comprehensively, and in an unexceptional way, with the two issues that had been raised for his consideration.  Having done so, he concluded that the Tribunal had not fallen into jurisdictional error.  I am unable to discern any error in that conclusion.

11. The notice of appeal filed in this Court refers to a number of decided cases.  However, it fails to identify any ground of appeal, unless the first ground be so regarded, viz that the magistrate:

    ‘… failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903.’

12. When I asked the appellant to explain the points sought to be raised by the notice of appeal, he told me he was unable to do so.  He said the document had been prepared for him by a friend.  He had no idea what it was intended to mean. 

13. However, in discussion, the appellant referred to one matter that might be regarded as a submission about jurisdictional error.  The Tribunal basically rejected the appellant's claim because it was not satisfied of the truth of the evidence he had given to the Tribunal.  The Tribunal gave a number of reasons for its dissatisfaction.  One of them was contained in the following two sentences of its decision, appearing at page 10 under the heading ‘Findings and Reasons’. 

    ‘The Tribunal was also concerned that the Applicant's original statement purporting to reflect his own personal experiences included the same details (for the most part in the same words) as the statements of other applicants with the same adviser, including the applicants in N02/41411, N02/41412 and N02/41414, for example in relation to having led a Taslama Nasreen support group.’

14. It appears from elsewhere in the Tribunal's reasons that the applicants in those other matters were members of a band, of which the present appellant was also a member.  The Tribunal accepted that the band was performing at a large open air concert in April 2001 at the time of a bomb blast.  The appellant told me today that the Tribunal did not put to him at the hearing that it was minded to reject his evidence because his statement was couched in language similar to the statements of the other applicants.

15. It seems to me that, if this claim is correct, it might give rise to an argument of jurisdictional error.  I do not wish to express a final opinion as to whether the argument would succeed.  However, the difficulty is that I do not have either a transcript or tape recording of the Tribunal hearing.  The reason for this, no doubt, is that the point was not raised before the magistrate, so this material was not put into evidence at that time.

16. As will be apparent from what I have said, the matter just mentioned did not feature in the grounds of appeal to the Federal Magistrates Court.  It is not related to either of the two grounds that were argued and rejected by the magistrate.  The point was not raised in the notice of appeal filed in this Court.  As the point depends upon factual materials that are not available to me, I cannot deal with the point.  The Court would be not justified in allowing an appellant to raise a fresh point the resolution of which depended on factual material that was not available for consideration.

17. I have reached the conclusion that there is nothing in either of the points that were raised before the magistrate and rejected by him.  I see no other basis in the evidence for an argument of jurisdictional error.  Accordingly, it would be futile to set aside the order of dismissal and allow the appellant to agitate his case yet again. 

18. The appellant has had the opportunity to argue his case in full, to use the words of the motion, but he has not been able to put an argument that would enable the Court to intervene on his behalf.  I propose to order that the notice of motion of 22 November 2005 be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             9 December 2005

The Applicant appeared in person.
Solicitor for the Respondent:	Mr P Reynolds of Clayton Utz
Date of Hearing:	2 December 2005
Date of Judgment:	2 December 2005