SZDNV v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 578

FEDERAL COURT OF AUSTRALIA

SZDNV v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 578

Judiciary Act 1903 (Cth) s 39B
Federal Court of Australia Act 1976 (Cth) s 25(1A)

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601

SZDNV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1849 OF 2004

HELY J
18 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1849 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDNV APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	18 APRIL 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 1849 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	HELY J
DATE:	18 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Mowbray dismissing an application under s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) for relief in relation to a decision of the Refugee Review Tribunal (‘the RRT’) made on 16 March 2004. That decision affirmed the decision of the Minister’s delegate not to grant the appellant a protection visa. Pursuant to a direction of the Chief Justice under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) the appeal is to be heard and determined by a single judge.

2. The appellant is a citizen of Bangladesh who claims to have a well-founded fear of persecution in Bangladesh by reason of his membership of the Awami League and related student bodies.  The RRT did not believe any of the appellant’s substantial claims for reasons which the RRT gave.  Those reasons included the presentation by the appellant of photographs which the RRT found to have been fabricated to establish a role and importance in the Awami League which the appellant did not have; the presentation of official documents which the RRT found to have been fabricated and designed to establish that false charges had been laid against him; a pattern of evasiveness in responding to the RRT’s questions; and a lack of genuine documentation of claims that should have been readily verifiable if they were true.

3. The Federal Magistrate described the appellant’s main ground on which he relied to establish that the RRT’s decision was vitiated by jurisdictional error as being that the RRT denied him procedural fairness in the handling of the material, including country information relating to fraudulent documents.  The Federal Magistrate rejected this ground because it was patent on the face of the RRT’s decision that the issue of fraudulent documents was raised with the appellant at the hearing.

4. At the RRT hearing the appellant acknowledged the correctness of country information to the effect that fraudulent documents are readily available in Bangladesh but maintained that his own documents were genuine.  The RRT drew the appellant’s attention to features on the face of the documents which suggested otherwise and sought the appellant’s comment thereon.  The Federal Magistrate could find no merit in the appellant’s assertion that he was denied procedural fairness in relation to the fraudulent document issue.  The Federal Magistrate also rejected the appellant’s contention that the RRT ought to have conducted further investigations into the genuineness of the documents.

5. Other grounds relied upon by the appellant were rejected by the Federal Magistrate either because they were unparticularised or because they impermissibly sought a merits review of the RRT’s decision.

6. In this Court the appellant filed an amended notice of appeal setting out the grounds on which he relied.  He did not comply with a direction given by the Court on 11 February 2005 that he should serve an outline of his submissions prior to the hearing date.  When the matter came on for hearing this morning, the appellant applied for an adjournment, an application which I rejected for reasons which I gave at the time.

7. I invited the appellant to put any submissions that he wished to put and to indicate any error which he claimed that the Federal Magistrate had committed.  His only response was that he could not identify any error because he does not understand legal things.  Whilst I sympathise with a person in the position of the appellant who is in a foreign country, whose legal system he does not understand and who cannot speak the language ordinarily spoken in that country, nonetheless the onus is on him to establish error on the part of the Federal Magistrate.

8. The grounds specified in the amended notice of appeal and my decision on each of those grounds will now be set out.  For ease of reference I have numbered the grounds appearing in the amended notice of appeal.

   ‘(1) The Single judge in the Federal Magistrate Court in his Honours judgment delivered on 22 November 2004 failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39B of the Judiciary Act 1903.’

   My decision on that ground is that the decision of the Federal Magistrate was plainly correct for the reasons given by his Honour.

   ‘(2)     The grounds and relief is very much similar with recent High Court Judgment - Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: Immigration - Refugee - Protection visa - Decision by Minister to refuse application for visa - Review of decision by Refugee Review Tribunal - Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Registrar of Tribunal for purpose of review - Nature and extent of obligation - Migration Act 1958 (Cth) ss 148(3), 424(1).’

   This is not a ground upon which reliance was placed before the Federal Magistrate.  The ground is completely unparticularised but more importantly, the appellant has not established any facts which could bring this case within the decision of the High Court in Muin.  There is no substance in this ground.

   ‘(3)     The Honourable trial judge erred in considering the real state of affairs of the applicant, the applicant feared harm.  And also the present ruling government failed to protect civilians life, which is a worldwide concern today.  Honourable Trial judge did not take it into consideration.’

   In my view, the real state of affairs of the appellant was a factual question for the RRT to determine, as the Federal Magistrate correctly recognised.  It was no part of the function of the Federal Magistrate to enter into a merits review of the RRT’s decision.  There is no substance in this ground.

   ‘(4) S 474 of the Migration Act is ineffective as per the recent two decision of the High Court of Australia. Honourable trial judge did not consider this in favour of me.’

   The RRT’s decision was a privative clause decision within the meaning of s 474 of the Migration Act1958 (Cth) (‘the Migration Act’), because the RRT made no legal error going to jurisdiction in coming to its decision, and its decision was plainly a bona fide attempt on the part of the RRT to discharge its powers and responsibilities under the Act. The proposition that s 474 is ineffective in circumstances where the RRT is guilty of jurisdictional error is of no possible application in the circumstances of the present case.

   ‘(5)     The Tribunal erred in law in refusing to give me protection visa that I was a member of MAIN OPPOSITION Bangladesh Awami League only because the country information.  I submitted sufficient documents to prove those matters but the tribunal neglected those evidences.  I refer RD pages 040-066.’

   No such error of law has been established.  Whether the RRT was satisfied that the appellant had a well-founded fear of persecution by reason of his association with the Awami League was a factual question committed to the RRT for its determination.  The fact that its decision was adverse to the appellant does not establish jurisdictional error.

   ‘(6)     His Honour the Federal Magistrate also failed to find that the Tribunal erred in law in determining that I was persecuted although it had sufficient evidences in front it to examine.’

   It is true that if the appellant’s claims had been accepted by the RRT they may have established a well-founded fear of persecution for a Convention reason.  The RRT examined the factual material in front of it but did not accept the appellant’s claims.  That was a course which the RRT was entitled to take and no error of law has been established.

   ‘(7) The Tribunal did not disclose the adverse country information, which were used against me. I was not given any adverse information to contest with and to give comment. Thus the tribunal erred in law and it is a breach of Migration Act 1958.’

   It is apparent on the face of the RRT’s decision that the country information was disclosed to the appellant at the hearing and was not disputed by him, except that he contended that his own documents were genuine.  That was an issue which the RRT had to decide and the fact that it did so in a manner which was adverse to the appellant does not establish that it erred in law or that its decision were otherwise in breach of the Act.

   ‘(8)     The Federal Magistrates also failed to find this error in his Honour’s judgment.’ 

   No such error has been established and there is no substance in this ground.

9. It follows that none of the grounds of appeal have been made out and as the appellant has not sought to put any other matters before me, the appeal must be dismissed.

10. Miss Henderson, counsel for the Minister, seeks an order for costs.  The ordinary order in a case such as the present is that the appeal would be dismissed with costs.  The impecuniosity of the appellant is not ordinarily regarded as a reason for not making the usual order and I do not think that it provides a reason in the circumstances of the present case.  The order which I make is therefore that the appeal be dismissed with costs.  If the appellant seeks time within which to pay those costs that is a matter for negotiation between him and the representative of the Minister.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             9 May 2005

The appellant appeared in person
Counsel for the Respondent:	Ms R Henderson
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 April 2005
Date of Judgment:	18 April 2005