SZDNY v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 374

FEDERAL COURT OF AUSTRALIA

SZDNY v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 374

SZDNY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 58 of 2005

WILCOX J
1 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 58 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDNY APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	1 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the costs of the respondent.

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 58 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	WILCOX J
DATE:	1 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision by Federal Magistrate Smith dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal had affirmed a decision of a delegate of the respondent, the Minister for Immigration, Multicultural and Indigenous Affairs, not to grant a protection visa to the appellant. The Chief Justice has directed, pursuant to section 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal to this Court be heard by a single Judge.

2. At a directions hearing before me, I explained to the appellant that this Court could not review the findings of fact made by the Tribunal and that it could only interfere with the Tribunal's order if satisfied that the Tribunal had fallen into jurisdictional error.  I explained the meaning of the term to the appellant and he informed me he understood. 

3. Today, the appellant handed to me a document entitled:  Amended Notice of Appeal.  This document sets out ten paragraphs that purport to be grounds of appeal.  The course that I took was to go through the ten  paragraphs with the appellant in order to understand the substance of the matters he wished to raise.  I did this, leaving aside for the moment the question whether an amendment of the notice of appeal should be permitted at this stage. 

4. At an early stage of the discussion with the appellant, he told me he did not understand what was in the document; it had been prepared on his behalf by somebody else.

5. It is apparent that the person who prepared the document had not properly analysed the Tribunal’s reasons for decision.  Some of the statements made in the document are simply incorrect. 

6. I will set out the ten grounds stated in the document handed to me and briefly deal with them.  The ten grounds are as follows: 

   ‘1.The learned Federal Magistrate erred in law by not finding that the Refugee Review Tribunal had made a jurisdictional and factual error in reaching the conclusion that the Appellant is not entitled to Protection Visa.

   2.The Federal Magistrate failed to see that the Refugee Review Tribunal failed to give procedural fairness to the appellant as required under the Migration Act.  The Federal Magistrate further erred in saying that such a ground has no meaning.

   3.The Federal Magistrate failed to see that the Refugee Review Tribunal failed to give an opportunity to comment on the information which forms part or whole of the Tribunal’s reasons for making the decision.

   4.The Federal Magistrate failed to see that the Tribunal failed to make any findings to assess what religious changes might occur in India in the foreseeable future.

   5.The Federal Magistrate failed to see that the Tribunal erred in assessing whether the appellant’s fear of persecution for reasons of religion, Christianity, were well-founder [sic] in the reasonably foreseeable future.

   6.The finding of the Federal Magistrate in paras 11 and 12 of the reasons for judgment are not correct and the order of the Federal Magistrate is to be set aside for this reason.  The Federal Magistrate failed to see that in pages 6, 7 and 8, the Refugee Review Tribunal has referred to third party information, like The United States Department of State and decided the matte [sic] against the appellant.

   The grievance of the appellant is that the Federal Magistrate has not considered that and in Para 11 the Federal Magistrate has stated that “I do not know what is being referred to ‘country information used in the decision’.

   7.The Federal Court was again wrong in saying in para 12 that there is no evidence to show that any such information was used by the Tribunal adversely to the applicant.  The Federal Magistrate failed to see that the Refugee Review Tribunal has used that evidence against the applicant in page 10 of the decisions and reasons.

   8.The Federal Magistrate is wrong in committing factual error as seen in grounds 6 and 7 above and this goes to the root of the matter.

   9.The Federal Magistrate is not correct in saying that he has been unable to find any substance in the complaint made in the application before the Refugee Review Tribunal.

   10.In any event the Federal Magistrate should have directed the Refugee Review Tribunal to consider the matter afresh.’

7. The first ground makes no discrete point.  The appellant told me it was to be understood in the light of the following paragraphs. 

8. The second paragraph and the sixth paragraph both contain an allegation of denial of procedural fairness.  The appellant was unable to explain the denial to me. 

9. Ground two is incorrect in saying the Magistrate ‘further erred in saying that such a ground has no meaning’.  The Magistrate did not say that.  The reference is apparently to paragraph 11 of the Magistrate's reasons for decision.  The Magistrate there noted that the appellant’s allegation of denial of procedural fairness had not been particularised.  He then said, ‘The Court is unable to assess whether it has any meaning.’  He obviously meant that was because of the lack of particulars.  As I say, the appellant was unable to explain his complaint to me. 

10. Paragraph 3 raises a similar matter.  It says the Tribunal failed to give an opportunity to comment on information that formed part of the Tribunal's reasons for making the decision.  Apparently, the author of the document had in mind certain country information taken into account by the Tribunal.  I think the Magistrate was correct in saying there was no obligation to provide an opportunity to comment on this information; it was not information that related particularly to the appellant.  In any event, the complaint is hard to justify, given the fact that the appellant chose not to attend the oral hearing provided to him by the Tribunal. 

11. Paragraphs 4 and 5 make the incorrect statement that the Tribunal failed to consider what might be the position in India in the foreseeable future.  Reference to the Tribunal's findings and reasons demonstrates this is wrong.  The appellant conceded this to be the case.

12. Paragraph 6 contains no new point, other than a reference to certain country information that the Tribunal took into account. 

13. Paragraph 7 makes the claim, obviously intending to speak of the Federal Magistrates Court, that the Court was wrong in saying there was no evidence to show that any such information was used by the Tribunal adversely to the applicant.  It seems to me the Magistrate was factually correct in making this statement.  I invited the appellant to point to something in the Tribunal's reasons that indicated the contrary.  He could not do so and he agreed that paragraph 7 was wrong. 

14. Paragraphs 8, 9 and 10 are general statements except perhaps insofar as they raise factual issues.  They do not raise any matter that could conceivably amount to jurisdictional error. 

15. I have read the Tribunal's decision and I am unable to see any jurisdictional error in it.  The Magistrate gave careful consideration to a number of matters that were raised before him, probably through a document such as that tendered to me.  I see no error in the Magistrates' decision. 

16. The order of the Court is that the appeal be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             12 April 2005

The Appellant appeared in person.
Counsel for the Respondent:	Mr A McInerney
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	1 April 2005
Date of Judgment:	1 April 2005