SZHZR v Minister for Immigration and Multicultural Affairs

[2006] FCA 1466

FEDERAL COURT OF AUSTRALIA

SZHZR v Minister for Immigration & Multicultural Affairs [2006] FCA 1466

SZHZR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR

NSD1056 OF 2006

EMMETT J
31 OCTOBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1056 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHZR
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	31 OCTOBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

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	NSD1056 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHZR
Appellant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

EMMETT J

DATE:

31 OCTOBER 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen from Bangladesh.  He arrived in Australia on 1 September 2003.  On 9 or 10 October 2003, he lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). On 18 February 2004, a delegate of the first respondent, the Minister for Immigration & Multicultural Affairs (‘the Minister’), refused to grant a protection visa. On 27 June 2004, the second respondent, the Refugee Review Tribunal (‘the Tribunal’), affirmed the decision not to grant a protection visa.

2. The appellant brought a proceeding in the Federal Magistrates Court which was dismissed.  The appellant appealed to the Federal Court of Australia and on 5 September 2005, the decision of the Tribunal was quashed and the matter was remitted to the Tribunal for reconsideration according to law.  However, on 30 November 2005, the Tribunal, differently constituted, again affirmed the decision not to grant a protection visa.  The appellant again commenced a proceeding in the Federal Magistrates Court and, on 11 May 2006, the Federal Magistrates Court ordered that that proceeding be dismissed with costs.

3. The appellant again appealed to this Court and the appeal is now fixed for hearing before me today.  When invited to address the Court, the appellant said that he wished to rely on a written submission which he produced to the Court.  The submission does not address any issue that could give rise to the relief sought either in the Federal Magistrates Court proceeding or on appeal.  Rather, the submission draws attention to events in Bangladesh since the appellant had left Bangladesh.  It also mentions the experience of the appellant’s brother in seeking asylum in Italy.  When pressed as to whether there was any submission he wished to make, the appellant said that the Tribunal had erred insofar as it did not believe him.

4. Section 476 of the Act provides that the Federal Magistrates Court has no jurisdiction in relation to certain types of decision. In effect, there is no basis for intervention on the part of the Federal Magistrates Court in a decision by the Tribunal unless it is shown that the Tribunal committed jurisdictional error. The Federal Magistrate observed that the appellant did not file any written submissions but asserted that he had been denied procedural fairness because the Tribunal had been given all his documents and the Tribunal did not believe him.

5. The primary judge considered that the appellant’s grounds related entirely to a challenge to the factual findings made by the Tribunal.  The appellant’s oral submissions to the primary judge went entirely to the fact that the Tribunal did not believe his evidence and questioned the authenticity of his documents.  As his Honour observed, credibility findings are matters of fact for the Tribunal and there is no error of law, let alone jurisdictional error, in the Tribunal making an incorrect finding of fact.  His Honour considered that there was no evidence before him that the Tribunal denied procedural fairness to the appellant and observed that a finding that a person is not a credible witness is a factual finding.

6. In his notice of appeal to this Court, the appellant raised three grounds.  The first is that the primary judge failed to accept that the appellant did not present any false evidence to the Tribunal.  He complains about the observation by the primary judge that credibility findings are matters of fact for the Tribunal and that, so long as the Tribunal’s credibility findings are open to it, no error is demonstrated.  There is no basis for concluding that the Tribunal failed to consider all of the evidence given by the appellant.  Rather, it is clear from a reading of the Tribunal’s reasons that, for the reasons explained and expounded upon, the Tribunal did not believe the claims made by the appellant.  That was a finding which his Honour considered was open to the Tribunal and I have seen no material to suggest that it was not open to the Tribunal.  There was no jurisdictional error involved.

7. The second ground in the notice of appeal is that the primary judge erred in failing to find that the Tribunal was highly unreasonable in failing to carry out its review in accordance with the provisions of the Act and that that failure constituted jurisdictional error. No particulars of the failure to comply with the provisions of the Act have been provided in the notice of appeal and, as I have said, the appellant did not wish to make any further oral submissions in support of those grounds. There is nothing before me to indicate that the Federal Magistrates Court made any error in failing to conclude that the Tribunal had acted unreasonably or that it had failed to conduct its review in accordance with the provisions of the Act.

8. The third ground in the notice of appeal is that the primary judge made a serious legal error by failing to pronounce that there was jurisdictional error caused by the Tribunal’s failure to comply with s 424A of the Act. The particulars refer to a question contained in an extract from the decision of the Tribunal as originally constituted. There is nothing to suggest that the same question was put by the Tribunal as reconstituted and in respect of whose decision this proceeding has been brought. In any event, the information which it is said was not given by the Tribunal to the appellant was in fact the subject of a letter written in order to satisfy s 424A of the Act. To the extent that the information in question was a part of the reason for the Tribunal’s decision, the Tribunal complied with the requirements of s 424A of the Act. There was no jurisdictional error in that regard.

9. In the circumstances, there was no error on the part of the Federal Magistrates Court.  It follows that the appeal must 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 Emmett.

Associate:

Dated:        8 November 2006

The Appellant appeared in person
Counsel for the First Respondent:	Mr J Mitchell
Solicitor for the First Respondent:	Phillips Fox
Date of Hearing:	31 October 2006
Date of Judgment:	31 October 2006