SZGOS v Minister for Immigration and Citizenship

[2008] FCA 292

FEDERAL COURT OF AUSTRALIA

SZGOS v Minister for Immigration and Citizenship [2008] FCA 292

SZGOS v Minister for Immigration & Anor [2007] FMCA 1860 upheld

SZGOS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2347 OF 2007

GYLES J
4 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2347 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGOS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GYLES J
DATE OF ORDER:	4 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent assessed at $3,005.

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 2347 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGOS
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GYLES J
DATE:	4 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The grounds of appeal from the order of the Federal Magistrates Court in this case (SZGOS v Minister for Immigration & Anor [2007] FMCA 1860) really only isolate one point that can be identified; that is, that there was some breach of reg 4.35D of the Migration Regulations 1994 (Cth).  Counsel for the Minister suggested that was not a point raised below.  It certainly did not find its way into the basis for the application below and is not referred to in the judgment below.  In any event, I am satisfied from the submissions which have been received that there is no substance to it when the chronology of events is considered.  The appellant did not pursue any argument in relation to that today.

2. The affidavit in support of the appeal refers to a problem concerning documents and that is the sole matter addressed by the appellant today.  Again, it is suggested that this was not a matter raised by him as a basis for his application to the Federal Magistrates Court.  That appears to be so because it certainly does not form any part of the application in that matter, although it may be that the topic was raised in some fashion.

3. The grounds below were really a recitation of the appellant’s concerns which led to his application and did not descend to any particularisation of jurisdictional error on the part of the Refugee Review Tribunal (the Tribunal) in a way which could be identified.  However, it appears that the learned Federal Magistrate rather mercifully went through to try and make sure there was no injustice in the case.

4. The complaint about documents flows from part of the reasoning of the Tribunal.  The basic underpinning of the appellant’s claim for a protection visa was his membership of the Pakistan People’s Party.  The Tribunal, as part of its reasoning, pointed out that he had produced no documentary evidence of his membership of that party or of his having participated in any activities in support of it.  It was pointed out that, because there had been an earlier hearing and then a remittal, he had had a significant period, in the order of 18 months, to obtain any such documents.  The Tribunal also pointed to some (what it regarded as) discrepancies in his explanations, one being that he had mislaid them, the other that he had not been able to obtain them.  It was also pointed out that his undertaking to forward the documents had been made over a month before the decision was given and no evidence had been produced. 

5. The appellant contends that the practical situation was that he was unable to obtain those documents in the time available and that this inability was misused by the Tribunal.  That, of course, is, in effect, a challenge to the merits of the Tribunal’s decision and did not of itself raise any issue of jurisdictional error on the part of the Tribunal.  Thus, if it had been directly raised before the Federal Magistrates Court, it would have been rejected as an independent ground.

6. I should also point out that the Tribunal’s reasoning also included a finding that mere support for a legal opposition party would not be a proper basis for a well-founded fear of persecution.  Thus, at one level it may be that that may have been an alternative basis for the finding.  However, I do not need to resolve that because, as I have suggested, the difficulty as to documents was not raised before the Federal Magistrates Court.  If it had been, it would have been rejected as an independent ground.  Because of what is said by the appellant in his affidavit, it may be that the Federal Magistrate raised this question in order to understand it, but it does not appear from the reasons of the learned Federal Magistrate that it was perceived to be a particular ground of attack and, thus, was not considered as such.

7. Therefore, neither of the grounds which might be pursued, one being in the notice of appeal and the other disclosed in the affidavit, forms a proper basis for allowing an appeal from the decision of the Federal Magistrate and the appeal is dismissed.  The appellant is to pay the costs of the first respondent assessed at $3,005. 

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:       10 March 2008

The Appellant appeared in person
Counsel for the First Respondent:	Ms SA Sirtes
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	4 March 2008
Date of Judgment:	4 March 2008