SZDKE v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1268

FEDERAL COURT OF AUSTRALIA

SZDKE v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1268

SZDKE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1278 of 2005

WILCOX J
5 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1278 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDKE APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	5 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with 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 1278 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	WILCOX J
DATE:	5 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision of Federal Magistrate Raphael given on 12 July 2005.  His Honour dismissed an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’) that had been given on 9 December 1999.  This decision had already been the subject of review in this Court by Matthews J.  Her Honour dismissed the application for review on 9 August 2000.  However, at that time there were limitations in the grounds of review available under the Migration Act 1958 (Cth) (‘the Act’). For that reason, counsel for the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, did not take the point before the magistrate that the matters sought to be raised by the appellant on review were not able to be raised.

2. The Chief Justice directed pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the appeal to this court from the decision of Federal Magistrate Raphael should be heard by a single judge.

3. At the hearing of the appeal, Mr T Silva, solicitor, appeared on behalf of the appellant to argue three grounds of appeal.  It is possible for me to deal with them without setting out a summary of the facts found by the Tribunal.

4. The first ground of appeal is that the magistrate erred by failing to hold that the appellant was denied procedural fairness by the Tribunal.  The argument advanced by Mr Silva was that the Tribunal denied procedural fairness because it used certain country information in order to reach a conclusion that the appellant had not been detained, while in his native Pakistan, on account of his political opinion.  The relevant country information was a report by the Department of Foreign Affairs and Trade (‘DEFAT’).  The report was of a general nature and not particular to the appellant.  Mr Silva did not argue there was a statutory obligation for the Tribunal to have shown this material to the appellant, but that this was an obligation imposed upon the Tribunal at common law.

5. I do not find it necessary to reach a conclusion about the extent of any common law obligation.  It seems to me the learned magistrate was correct in saying it would not matter whether or not the submission was well-founded.  The magistrate pointed out that the Tribunal, whilst concluding that the applicant had not been detained because of his political opinion, went on to deal with his claim for refugee status upon the assumption that this conclusion was incorrect.  At page 22 of the Tribunal's reasons for decision, the following passage appears:

   ‘The Tribunal notes that a single incident detention/persecution may suffice to create a well founded fear and that the applicant does not necessarily have to establish past persecution in showing that they have a well founded fear of harm in the future.  In this case the Tribunal considered whether, even if the 24 hour detention in March 1997 did occur for a Convention reason, the applicant has a well founded fear of persecution.  The Tribunal gave weight to the applicant's evidence that he has a low political profile, he has been detained but not charged on one occasion and he was released within 24 hours from that detention when a bribe was paid.  The Tribunal is not satisfied, on the basis of this evidence, that even if the detention happened as claimed, there is a real chance of persecution for reason of his political opinion should the applicant return to Pakistan now or in the reasonably foreseeable future’

6. It will be seen that this passage accepts, for the purposes of consideration of the matter, that the detention that had occurred was for a Convention reason: political opinion.  However, having regard to the applicant's own evidence about his low political profile and the fact that he had made only one detention claim, and then for only a short period when no charge was laid, the Tribunal was not satisfied there was a real chance of persecution for reason of his political opinion should he now return to Pakistan.  The significance of what had happened to him was weighed along with the time that had elapsed.

7. Views may differ about the merit of this factual finding.  However, the Court has no jurisdiction to review the Tribunal's findings of fact.  While this finding stands, it seems to me immaterial whether or not the Tribunal erred in having regard to the DEFAT report for the purpose of concluding it was unlikely that the detention occurred for a political reason.

8. The second ground of appeal relates to the fact that the Tribunal failed, in the section of its decision which is headed ‘Findings and Reasons’, to refer to the fact - which it apparently accepted - that the appellant entered Australia under a false passport.  Mr Silva pointed out that it is commonplace for Tribunal members to regard the fact that a particular applicant has entered Australia under his or her own name as material suggesting the person was not subject to persecution in his or her home country.  Mr Silva made the legitimate debating point that one would have expected that, when the converse was true, this would be a matter mentioned and taken into account in an applicant’s favour.  I agree with this.  I think it would have been desirable for the Tribunal to refer to the subject.  However, the adequacy of the Tribunal's factual conclusions is not a matter for review in this Court.  Mr Silva realises he has to elevate this complaint into one of jurisdictional error.  He seeks to do so by saying the Tribunal failed to take into account a relevant consideration.

9. There is ample authority to support the proposition that the Tribunal commits jurisdictional error if it fails to consider a claim made by a particular applicant.  However, in this context, the word ‘claim’ does not refer to an item of evidence, but rather the particular basis by virtue of which the applicant has said he or she has a well-founded fear of persecution.  If a particular person claimed to fear persecution for two reasons - for example, political opinion and ethnicity - and the Tribunal considered only political opinion, and ignored ethnicity, this would undoubtedly be a jurisdictional error.  It is that type of claim that is referred to in the relevant authorities.  It would be imposing an undue burden on the Tribunal to expect members to advert to each item of evidence in order to avoid the reproach of having overlooked a relevant consideration.

10. The third ground of appeal is that the magistrate erred by failing to hold that the Tribunal made jurisdictional error when it found that the applicant had produced no evidence to support his claim that the detention was for a Convention reason.  The argument is that the applicant had provided to the Tribunal a statutory declaration made by himself in which he set out certain allegations, which were consistent with the proposition that the detention was for a Convention reason.  The point is made that a statutory declaration has a degree of formality and can, under some circumstances, be regarded as evidence.  However, the Tribunal's comment has to be considered in its context.  The Tribunal was looking for corroborative material from somebody other than the appellant, not simply for a more formal statement of the appellant's evidence.

11. Mr Silva has, I think, advanced all arguments that can properly be put on behalf of the appellant.  But it seems to me the grounds of appeal must all be rejected.  The appropriate order is that the appeal be dismissed with costs.  I so order.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            22 September 2005

Solicitors for the Appellant:	Mr T Silva of Silva Solicitors
Counsel for the Respondent:	Mr R Beech-Jones
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 September 2005
Date of Judgment:	5 September 2005