SZDHZ v Minister for Immigration and Multicultural Affairs and Refugee Review Tribunal

[2006] FCA 1521

FEDERAL COURT OF AUSTRALIA

SZDHZ v Minister for Immigration & Multicultural Affairs and Refugee Review Tribunal [2006] FCA 1521

MIGRATION – no point of principle

Migration Act 1958 (Cth)

SZDHZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1173 OF 2006

TRACEY J
15 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1173 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDHZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	15 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed with costs fixed at $3800.

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 1173 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDHZ
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	15 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate, delivered on 29 May 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 3 March 2004 and handed down on 25 March 2004.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the appellant.

2. The appellant is a citizen of Tonga.  The appellant told the Tribunal that he had a well-founded fear of persecution in Tonga because of his political opinions.  The appellant claimed to support democracy, including supporting a democratic movement led by a People’s Representative in the Tongan Legislative Assembly.  The appellant claimed that the Tongan police and officials were corrupt and that he feared being gaoled for civil disobedience.

3. The appellant indicated, in a response to an invitation to attend a hearing on 17 November 2003, that he wanted to give oral evidence and provide a witness. However, on the scheduled date of the Tribunal hearing, the appellant did not attend. The Tribunal in its decision noted that the appellant did not contact the Tribunal to explain his absence. It proceeded, pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’), to make a decision. The Tribunal was unable on the material before it to be satisfied that the appellant’s claims were authentic. The Tribunal found that the appellant’s evidence was vague and that the appellant had failed to provide supporting information. The Tribunal noted that there were omissions of certain details which were inconsistent with a genuine fear of persecution. The Tribunal was unable to be satisfied, in the absence of supporting details, that the appellant was at risk of serious harm amounting to persecution for a Convention reason if he were to return to Tonga.

4. On 15 April 2004 the appellant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s decision. In an amended application filed on 28 September 2004, the appellant relied on certain constitutional grounds and filed a Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth). The appellant claimed that ss 474, 475 and 476 of the Migration Act were unconstitutional.

5. The Federal Magistrate, in considering the Tribunal’s decision in light of the claims made by the appellant, found that s 474 of the Act was a valid enactment and referred to Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476. Section 475 of the Act was valid as it was ancillary to s 474. Section 476, although in a different form when the application was considered by the Tribunal, was validly made because s 77(i) of the Constitution allowed Parliament to make laws defining the jurisdiction of any federal court other than the High Court. The appellant argued that citizens were entitled to have governmental decisions checked by an independent umpire. His Honour noted that no particulars of this ground were provided. Nonetheless it was quite clear, from Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365, that the Parliament of Australia was the supreme legislative body in Australia. The Federal Magistrate held that the constitutional validity of ss 474, 475, and s 476 of the Act could not be affected by other Commonwealth enactments even if there were inconsistencies between them. In relation to a ground regarding international instruments, the Federal Magistrate held that these only became enforceable under domestic law when incorporated in domestic legislation. His Honour found no jurisdictional error was established by the grounds raised.

6. His Honour was mindful of the effect of s 424A of the Act, but found that no breach had occurred because the information relied on was covered by the exemption provided for in s 424A(3)(b) of the Act and, in any event, the decision was based on a lack of information. His Honour found no jurisdictional error and dismissed the application.

7. The notice of appeal to this Court raised the following grounds:

   (a)that His Honour erred in finding that the application before him involved a matter arising under the Constitution,

   (b) that the Federal Magistrate erred in law and fact in finding that the delegate was not acting in good faith, when making his decision.

   No particulars of either ground were provided.

8. The appellant appeared in person before this Court. He had the assistance of an interpreter. He displayed very little understanding of his appeal grounds. He advised that they had been drafted for him by a friend. I advised him that I found the grounds very difficult to understand and asked for clarification. He could not assist. It seems to me that neither ground alleges jurisdictional error on the part of the Tribunal. Moreover, I do not think that the learned Magistrate made either of the findings attributed to him. The appellant was unable to point me to any passages in the Magistrate’s reasons in which the findings were said to be made.

9. No error is shown in the learned Magistrate’s decision. The appeal will be dismissed with costs fixed at $3800.

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

Associate:

Dated:        15 November 2006

Counsel for the Appellant:	Litigant in Person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Dates of Hearing:	15 November 2006
Date of Judgment:	15 November 2006