SZJGX v Minister for Immigration and Citizenship

[2008] FCA 359

FEDERAL COURT OF AUSTRALIA

SZJGX v Minister for Immigration & Citizenship [2008] FCA 359

SZJGX v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2016 of 2007

GOLDBERG J
25 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2016 of 2007

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJGX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

25 FEBRUARY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The Appellant pay the costs of the First Respondent fixed in the sum of $2,900.00.

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 2016 of 2007

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJGX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GOLDBERG J
DATE:	25 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court on 26 September 2007 dismissing an application by the appellant for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).

2. On 27 July 2006, the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Citizenship (“the Minister”), refusing to grant the appellant a Protection (Class XA) visa.

3. The Tribunal set out the appellant’s history and claims and background information it had available to it in relation to the appellant’s application, and these matters are conveniently summarised in paragraphs 5 and 6 of the Federal Magistrate’s reasons for judgment.  I do not propose to repeat them.

4. The Tribunal’s reasons for affirming the Minister’s decision are summarised in paragraph 7 of the Federal Magistrate’s reasons.  In substance, the Tribunal made adverse findings in relation to the appellant’s credibility, and did not accept the appellant’s claims as to the activities in which he had been involved in the People’s Republic of China.  The Tribunal set out in considerable detail its reasoning as to why it did not accept the appellant’s claims.

5. The grounds of appeal from the Federal Magistrates Court were, in substance, the same grounds of appeal which were before the Federal Magistrate and I can summarise them in the following way: 

   (1)the Tribunal contravened s 424A of the Migration Act 1958 (Cth) (“the Act”) without the benefit of oral submissions from the appellant;

   (2)the Federal Magistrate misconstrued s 424 of the Act;

   (3)the Federal Magistrate fell into jurisdictional error in that he failed to exercise his jurisdiction, or asked the wrong question;

   (4)the Federal Magistrate failed to identify the social group to which the appellant belonged;

   (5)he asked the wrong question in relation to the issue whether the appellant had a well‑founded fear of persecution for the specified reasons;

   (6)the appellant was denied natural justice and procedural fairness as the Tribunal did not give particulars in writing of information the Tribunal considered would be part of its reasons.

6. I have had the benefit of written submissions on this appeal from the appellant and the Minister.  In the hearing, I asked the appellant whether he wanted to say anything in relation to his appeal and his grounds of appeal, and the only ground the appellant developed was in relation to the letter which he sought to submit to the Federal Magistrates Court and to me, which he claimed the Tribunal did not consider.

7. The appellant submitted that the Tribunal did not consider the letter, although he accepted that the Tribunal asked him to talk about its contents.  He submitted that he talked about the contents of the letter in outline, although not in detail.  The appellant submitted that the letter is important for his application for a protection visa, and that it is relevant to his case.  He informed me that he had the letter in court and that he had the tape of the Tribunal hearing also in court. 

8. I am sitting in an appellate jurisdiction and my role is to determine whether the Federal Magistrate fell into error in his reasons, and indirectly whether the Tribunal fell into error in its reasons.  I am not deciding the appellant’s case afresh, and the opportunity for the submission of material on this appeal, which was not before the Tribunal or the Magistrate, is extremely limited.

9. Having regard to accepted authority and principles, I do not consider it is open to me to receive and consider the letter or the tape of the Tribunal hearing.  In any event, having regard to what I will say in a moment, I do not consider that submission of the letter today would take the matter any further.

10. I am not satisfied that any of the grounds of appeal have been made out.

11. It is apparent from the reasons of the Tribunal, as analysed by the Federal Magistrate, that there was no breach of s 424A of the Act. Although the appellant represented himself before the Tribunal and the Federal Magistrate, he was given every opportunity to consider the matters which the Tribunal considered would be its reason, or part of its reason for affirming the decision of the Minister’s delegate. In particular, I do not consider that there was any breach of s 424A of the Act in relation to the letter upon which the appellant now relies.

12. I consider that s 424A(3) of the Act was relevant in this context, as the letter falls into the category of information that the appellant gave the Tribunal for the purpose of the Tribunal’s review. This is made clear in the Tribunal’s reasons. I refer to the passage in the Tribunal’s reasons which are set out in paragraph 12 of the Federal Magistrate’s reasons:

    “I asked the applicant if there was anything further he wished to add before I closed the hearing.  He referred to a letter that he had received from his parents which he said mentioned that his cousin and his cousin’s friends had been arrested, and asked him to try and stay here because if he returned, he would definitely be sentenced.  He said that his parents had written that they were quite old now; that they could only depend on him, and that if he was safe, this would put their minds at rest.”

13. It is clear that the Tribunal was given such information about the letter which the appellant wished to supply at that time.  The importance of the letter was not lost on the Tribunal, and it is clear that the Tribunal has taken the letter into account.  The seriousness of the issue identified in the letter is made clear in the Tribunal’s recitation of what the appellant told the Tribunal about the contents of the letter.

14. In relation to the remaining grounds of appeal, I do not consider that the Tribunal fell into jurisdictional error, nor do I consider that the Federal Magistrates Court erred in law in finding that the Tribunal had not fallen into jurisdictional error.

15. As the Federal Magistrate pointed out, the Tribunal’s findings were open to it on rational grounds on the material before it.  I do not consider that the Tribunal asked the wrong question in relation to determining whether the appellant had a well‑founded fear of persecution for one of the specified reasons.

16. The appellant’s reference to the Tribunal failing to make an explanation in relation to his particular social group appears to be a complaint about the Tribunal’s consideration of the claims made by the appellant in relation to the persecution of which he was complaining.  However, I am satisfied the Tribunal did not err in law, nor did the Federal Magistrate, in its consideration of the Tribunal’s decision in this respect, in relation to the manner in which it analysed the appellant’s claims and reached a conclusion on them.

17. I do not consider that the appellant was denied natural justice or procedural fairness by the Tribunal, nor do I consider that the Federal Magistrate erred in law in reaching the same conclusion.

18. For all these reasons, I am not satisfied that there is any substance in the appellant’s submissions that the Tribunal and the Federal Magistrate erred in law in their consideration of the matters before him, before them.

19. As I have concluded that there was no jurisdictional error in the Tribunal’s reasons or the Federal Magistrate’s reasons, I do not consider that there is any basis for challenging the Tribunal’s decision, and the Federal Magistrate’s decision, as the decision of the Tribunal is otherwise a privative decision in respect of which no appeal can lie in the absence of jurisdictional error.

20. The order of the court will be that the appeal be dismissed and the appellant pay the costs of the Minister, fixed in the sum of $2,900.00.

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

Associate:

Dated:        17 March 2008

Counsel for the Appellant:	the Appellant appeared in person
Counsel for the Respondent:	Ms S Sirtes
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	25 February 2008
Date of Judgment:	25 February 2008