SZHDR v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 344

FEDERAL COURT OF AUSTRALIA

SZHDR v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 344

SZHDR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 161 OF 2006

WILCOX J
29 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD161 OF 2006

BETWEEN:	SZHDR APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	29 MARCH 2006
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	NSD161 OF 2006

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

JUDGE:	WILCOX J
DATE:	29 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision of Federal Magistrate Emmett given on 6 December 2005.  Her Honour dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’), made on 29 August 2005, in which the Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to grant the appellant a protection visa.  The appellant appeared on his own behalf, both before the magistrate and at the hearing in this Court.  On each occasion he was assisted by an interpreter. 

2. The magistrate carefully considered the Tribunal's reasons for decision and dealt with a number of grounds set out in the application for review.  Three of those grounds foreshadow the three grounds specified in the notice of appeal to this Court.

3. I respectfully agree with the way in which the magistrate dealt with all three of those grounds. 

4. The words used in the notice of appeal to this Court make two suggestions of the existence of a question of law.  However, upon analysis, no such question is raised. 

5. The first ground of appeal states:

   ‘The Tribunal Member misinterpret subsection 91R(3).’

1. Misinterpretation of a statutory provision would, of course, be a legal error.  However, the appellant has not put any argument about misinterpretation or misapplication of the statutory provision (s 91R(3) of the Migration Act 1958 (Cth); rather he quarrels with the Tribunal's conclusion that his conduct in Australia, in attending Church and Church activities, was not conduct otherwise than for the purpose of strengthening his claim to be a refugee. The Tribunal’s conclusion about this matter was entirely a conclusion of fact. It is no part of the Court’s function to determine whether or not that conclusion of fact was justified. The Tribunal gave reasons for its conclusion of fact and it is sufficient for me to say, agreeing with the learned magistrate in this respect, that it was a conclusion of fact that was open to the Tribunal to reach.

2. The second ground of appeal set out in the notice of appeal raises a matter that is entirely one of fact.  There is not even a veneer of a legal point. 

3. The third ground of appeal claims that the Tribunal made a ‘biased judgment’ in finding that the applicant would not practice Christianity if he returned to his country of nationality.  However, nothing has been put before this Court, just as nothing was put before the Federal Magistrate’s Court, to justify a claim of bias.  The appellant made clear to me that he regards the Tribunal’s judgment as incorrect.  However, the relevant finding is a conclusion of fact and is not vulnerable to review in this Court. 

4. As I expected the appellant to appear unrepresented, I myself considered whether the Tribunal's decision appeared to reflect any jurisdictional error.  I have been unable to detect any such error.  The appeal will be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            13 April 2006

The Appellant appeared in person.
Solicitor for the Respondent:	Ms E Palmer of Clayton Utz
Date of Hearing:	29 March 2006
Date of Judgment:	29 March 2006