SZJJZ v Minister for Immigration and Citizenship

[2007] FCA 484

FEDERAL COURT OF AUSTRALIA

SZJJZ v Minister for Immigration & Citizenship [2007] FCA 484

SZJJZ, SZKBT, SZKBU AND SZKBV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 233 OF 2007

GRAHAM J
15 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 233 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJJZ
First Appellant

SZKBT
Second Appellant

SZKBU
Third Appellant

SZKBV
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	15 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The children of the appellant, who is identified as SZJJZ, being themselves identified as SZKBT, SZKBU and SZKBV be added as appellants in the Appeal the subject of the Notice of Appeal filed 13 February 2007.

2.Refugee Review Tribunal be added as a second respondent to the Appeal.

3.The appeal be dismissed.

4.The first appellant pay the respondent Minister’s 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	NSD 233 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZJJZ
First Appellant

SZKBT
Second Appellant

SZKBU
Third Appellant

SZKBV
Fourth Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	15 MARCH 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an unfortunate case which reflects a misunderstanding on the part of the principal appellant of the role of the Federal Magistrates Court of Australia in reviewing a decision of the Refugee Review Tribunal (‘the Tribunal’).  It also reflects a misunderstanding on the part of the principal appellant of the role of the Court in considering an appeal from a decision of a Federal Magistrate who has dismissed an appellant’s Application for Review and made an order that the appellant pay the respondent Minister’s costs.

2. The appellant was born in Fiji on 25 June 1966.  He is of Indo-Fijian ethnicity.  Prior to coming to Australia in December 1997 he previously visited Australia twice and the United States once.  He was married on 17 January 1990 to a native Fijian.  They had three children all of whom were born in Australia.  The appellant has been identified for the purposes of these proceedings as SZJJZ.  His three children who are now named as additional appellants have been identified for the purposes of these proceedings as SZKBT, SZKBU and SZKBV.  It would appear that there was some matrimonial disharmony between the appellant SZJJZ and his wife.  Indeed, the appellant was at one stage convicted of assaulting his wife and the Department of Community Services in, I would understand, New South Wales, had to intervene in relation to the children.

3. The principal appellant, that is to say SZJJZ, arrived in Australia on 31 December 1997.  He applied for a Protection (Class XA) Visa on behalf of himself and his sons on 3 May 2006.  That Application was refused by a Delegate of the Minister on 18 May 2006.  On 25 May 2006 an Application for Review of the Minister’s Delegate’s decision was lodged with the Tribunal.  The Application for Review nominated Farid Varess as the appellant’s adviser being a registered migration agent with Craddock Murray Neumann Lawyers. 

4. On 21 June 2006 the principal appellant’s adviser lodged a written submission with the Tribunal.  On 27 July 2006 the Tribunal held a hearing at which the principal appellant gave evidence.  On 1 August 2006 the appellant’s adviser supplied further information to the Tribunal including a letter from the principal appellant to the Tribunal Member dated 31 July 2006 in which claims were made of what was said to be brutal attacks on the principal appellant.  On 7 September 2006 the Tribunal’s decision was handed down, that decision having been dated 25 August 2006.  The decision of the Tribunal Member was to affirm the decision of the Minister’s Delegate not to grant the applicants Protection (Class XA) Visas.

5. On 21 September 2006 the principal appellant applied to the Federal Magistrates Court of Australia for review of the decision of the Tribunal.  The Application contained six grounds.  On 24 January 2007 the Application for Review was amended to include the three children as additional applicants.  On 6 February 2007 a hearing of the appellant’s Application for Review took place in the Federal Magistrates Court of Australia.  The Court constituted by Federal Magistrate Barnes delivered reasons for judgment on the same day.  Her conclusion was that no jurisdictional error had been established with the consequence that she ordered that the Application be dismissed and that the principal appellant, then the first applicant, pay the respondent Minister’s costs fixed in the sum of $5000.

6. The reasons for judgment of the learned Federal Magistrate demonstrate that she carefully considered the terms of the Tribunal’s decision and the several grounds of appeal which were advanced.  She addressed not only the position of the principal appellant but also that of the three children whom she accepted were stateless persons but entitled to Fijian citizenship upon the registration of them as Fijian citizens in accordance with Fijian law.  The Federal Magistrate made it clear that insofar as the appellants disagreed with the Tribunal’s conclusions they could not expect to obtain in the Federal Magistrates Court of Australia a ‘merits review’.  I would respectfully record my agreement with the manner in which the Federal Magistrate addressed the case that was before her and with the conclusions that she reached.

7. A Notice of Appeal was filed in this Court on 13 February 2007 on the part of the principal appellant at whose request I have by order today added his three children as additional appellants.  The grounds of appeal were effectively: 

   ‘1.The Federal Magistrate was biased. The decision of the Federal Magistrate Barnes was fully based on the initial decision of the R.R.T.’

8. I invited the principal appellant, who appeared before the Court, to address each of these grounds.  I also invited him to indicate any other error on the part of the Tribunal that the appellants may wish to rely upon and I invited him to address the Court in respect of any case which the children may have which would warrant the matter being sent back to the Tribunal for reconsideration according to law. 

9. The appellant has adopted a slightly cavalier attitude towards the consideration of his appeal.  He was apparently sent a copy of the Appeal Book under cover of a letter from the Minister’s solicitors to him of 6 March 2007.  He informed the Court that he received an envelope of a size appropriate for transmission of an Appeal Book such as that which is now before the Court about three or four days ago but, to use his words, he had ‘not opened it yet’.

10. The appellant suggested that he had not been given a fair trial by Federal Magistrate Barnes.  In support of this submission he said that he told the Magistrate that his fear of returning to Fiji was ‘100 per cent’ and the Magistrate did not accept that.  He continued by saying words to the effect ‘I was wondering how the Federal Magistrate could determine how much fear I hold’.  Later he said words to the effect ‘I believe Federal Magistrate Barnes did not consider my part of the story about what I have gone through back in Fiji – that I am a genuine refugee’.  He added words to the effect ‘I believe there is enough evidence in my case to prove beyond reasonable doubt that I am a genuine refugee’.  The appellant asked for more time to prepare submissions and sought the assistance of a lawyer notwithstanding his earlier representation by a migration agent associated with Craddock Murray Neumann Lawyers.  In relation to his children all that he had to say was, ‘I want them to be included with my Application’.  The children would appear to now be aged between one and three. 

11. It is plain that the appellants are unable to direct the Court to any relevant error on the part of the Tribunal.  What the appellants seek is a merits review of their case by the Court.  Such a review of course is not available in this Court.  In the absence of any jurisdictional error on the part of the Tribunal the appeal must be dismissed. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:       3 April 2007

The First Appellant appeared in person.
The Second Appellant did not appear.
The Third Appellant did not appear.
The Fourth Appellant did not appear.
Counsel for the First Respondent:	Mr J S Mitchell
Solicitor for the First Respondent:	DLA Phillps Fox
The Second Respondent did not appear.
Date of Hearing:	15 March 2007
Date of Judgment:	15 March 2007