SZEHK v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1732

FEDERAL COURT OF AUSTRALIA

SZEHK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1732

SZEHK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1708 of 2004

JACOBSON J
24 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1708 of  2004

BETWEEN:	SZEHK APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	JACOBSON J
DATE OF ORDER:	24 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave to appeal be refused.

2.The applicant to pay the costs of the application.

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	N 1708 of 2004

BETWEEN:	SZEHK APPLICANT
AND:	MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	JACOBSON J
DATE:	24 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against the orders and judgment of Federal Magistrate Nicholls dated 17 November 2004. On that date, the learned Magistrate upheld the respondent's notice of objection to competency which was made pursuant to s 477(1A) of the Migration Act 1958 (Cth) on the ground that the application was not filed within 28 days of the notification of the decision of the Refugee Review Tribunal (“the RRT”). The Magistrate dismissed the application for judicial review of the RRT’s decision.

2. Leave to appeal is required under s 24(1A) of the Federal Court of Australia Act1976 (Cth) because the orders and judgment of the Federal Magistrate are interlocutory. The principles which govern an application for leave to appeal are well established. It is necessary for an applicant to show that the decision from which leave is sought to appeal is attended by sufficient doubt to warrant it being reconsidered by a Full Court and whether any substantial injustice would result if leave were refused.

3. The applicant is a citizen of Ghana who arrived in Australia on 11 April 1992 on a student visa.  She first applied for permanent residency in Australia on spouse grounds in July 1997, and was refused a visa in August 2001.  She then applied for a protection visa in October 2001.   A delegate of the Minister refused to grant the applicant a protection visa and on 29 July 2003, the RRT affirmed the decision not to grant a protection visa.  The RRT’s decision was handed down on 8 August 2003.

4. In the RRT, the applicant claimed that her father and his children had been subject to abuse, torture and unwarranted search by security agencies because her father was a member of the former government.  She claimed that as a Christian amongst Muslims, she had grave fears that her life was in danger.

5. The RRT noted that there was a change of government of Ghana in 2001, and that the applicant lodged her application for a protection visa about 10 months later.  The RRT went on to observe that in her oral evidence the applicant expressed concern that she was not rich and would need money for bribes in Ghana in order to survive and protect herself. 

6. The RRT observed that Muslims make up about 16 per cent of the population in Ghana, and the RRT was satisfied that the applicant would only be at risk of harm if disturbances or riots took on an anti-Christian character and if the applicant was unfortunate enough to be in the wrong place at the wrong time.  The RRT was, therefore, of the view that the appellants claimed fear of persecution was remote and speculative.

7. The RRT also observed that at the hearing the applicant said that she did not consider politics a problem in Ghana should she return, and the Tribunal member accepted that this was consistent with the country information.  The RRT was of the view that the applicant had diplomatic protection and no fear from the Ghanian authorities.  The RRT also considered the applicant's claim that she had a well founded fear of persecution in the sense of suffering day-to-day from serious discriminatory acts because she is a woman who is not wealthy.  The RRT considered this claimed fear of persecution upon the basis that it was put that she was a member of a particular social group.

8. The RRT considered the applicant's evidence and independent country information and concluded that women in Ghana are discriminated against but it was not satisfied that the discrimination, though abhorrent, reached the level necessary to amount to persecution.  The RRT therefore concluded that the applicant was not a person to whom Australia owed protection obligations under the Convention.

9. On 27 August 2004, the applicant filed an application in the Federal Magistrate's Court for review of the decision of the RRT.  The Magistrate's decision was given with ex-tempore reasons on 17 November 2004.  However, the published reasons were not available until 20 December 2004.  A copy was provided to the applicant when the matter was listed for hearing before me on 21 December 2004.  On that day, I stood the matter over to today to give the applicant an opportunity to consider the reasons. 

10. The Federal Magistrate noted at [9] of his judgment that the grounds of review were very general in nature, and that the applicant did not provide any support for the grounds in the outline of submissions made in the Federal Magistrate's Court.  The learned Magistrate observed that the submissions, at best, appeared to be an attempt to re-agitate the facts before the RRT, and went to the merits of her claim before the RRT.

11. The Magistrate said that since the applicant was unrepresented, he looked at the original application but could not find any support for the grounds claimed before the Court.  He said, at [10] that he was mindful of the fact that the applicant was unrepresented and that the matter was a serious one for her.    However, the Magistrate said at [11] that on a plain reading of the RRT’s record of decision, it dealt with each of the claims put by the applicant.  It is unnecessary to refer to the learned Magistrate's discussion of this which is set out in numbered subparagraphs of [11] of his judgment.

12. The Magistrate did consider the decision of the High Court in Minister forImmigration and Multicultural and Indigenous Affairs v Khawar 210 CLR 1. The Magistrate said that the claimed fears of violence were general and that, beyond mere assertion, the applicant produced no evidence to show that there was any toleration or condemnation by the Ghanian authorities and the RRT was entitled, on the material before it, to make the finding that it did.

13. The Magistrate said at [16] that the applicant was given an opportunity to put her claims to the RRT.  He said that those claims were discussed with her by the RRT, and that the applicant had brought no evidence to the contrary.  The Magistrate observed that the applicant had been unable to show that the RRT did not properly deal with the case that was presented.  He also said that no elements of bad faith were made out or evident.

1. The learned Magistrate therefore concluded at [17] that the applicant had been unable to show any error on the part of the RRT let alone any jurisdictional error.  He said that since the decision was a privative clause decision, which was lodged outside the time limit contained in s 477 of the Act, the respondent’s objection to competency must be upheld.

2. The application for leave to appeal filed on 19 November, 2004, provided grounds in very broad terms.  It is unnecessary to set them out.   The applicant relied upon an affidavit filed on 19 November 2004, stating that she is a genuine refugee.  Again, the grounds were set out in general terms and it is unnecessary to repeat them.  The applicant appeared before me in person today.  The submissions which she put were very general and went to the merits of the decisions of the Federal Magistrate and the RRT. 

3. As was said by Spender J in Ngu v Minister for Immigration and Multicultural andIndigenous Affairs, [2004] FCAFC 21, the Court's role on this application is limited to an assessment of whether the primary judge erred in law in concluding that the decision of the RRT was not affected by jurisdictional error.

4. The applicant has not identified any error in the Magistrate's decision, nor has she been able to point to any error of law let alone any jurisdictional error made by the RRT. 

1. It is important when considering this application that the Federal Magistrate considered carefully the decision of the RRT, mindful of the fact that the applicant was unrepresented, but nevertheless was satisfied that there was no jurisdictional error.  It follows, in my view, that the decision of the Federal Magistrate has not been shown to be attended by any doubt and that it does not warrant being reconsidered by a Full Court.  There is no injustice in refusing leave to appeal because the decision of the RRT was not affected by jurisdictional error. 

1. For those reasons, I will order that leave to appeal be refused.

2. I order that the applicant is to pay the costs of the application fixed in the amount of $900.00.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

Associate:

Dated:            24 December 2004

The Applicant appeared in person
Solicitor for the Respondent:	Philips Fox
Date of Hearing:	24 December 2004
Date of Judgment:	24 December 2004