SZKCO v Minister for Immigration and Citizenship

[2007] FCA 1177

FEDERAL COURT OF AUSTRALIA

SZKCO v Minister for Immigration and Citizenship [2007] FCA 1177

SZKCO v MINISTER FOR IMMIGRATION AND CITIZENSHIP
AND REFUGEE REVIEW TRIBUNAL

NSD 771 OF 2007

LINDGREN J
3 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 771 OF 2007

APPLICATION FOR LEAVE TO APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKCO
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE OF ORDER:	3 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

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

3.The costs referred to in Order 2 above be fixed at the sum of $1,400.

4.Reserve liberty to the applicant to apply to pay by instalments if he can not reach agreement with the first respondent to pay by instalments.

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 771 OF 2007

APPLICATION FOR LEAVE TO APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKCO
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LINDGREN J
DATE:	3 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal from a decision of the Federal Magistrates Court of Australia.  The judgment in question was delivered on 17 April 2007:  SZKCO v Minister for Immigration and Anor [2007] FMCA 638. The learned Federal Magistrate dismissed, pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) which was signed on 20 December 2006 and handed down on 11 January 2007.

2. The requirement for leave arises from s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act). Under s 24(1)(d) of that Act, this Court has, relevantly, jurisdiction to hear and determine appeals from judgments from the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth such as the Migration Act 1958 (Cth) (the Act). But an appeal is not to be brought from such a judgment that is an interlocutory judgment unless this Court or a Judge of this Court gives leave to appeal: s 24(1A) of the FCA Act. Rule 44.12(2) of the Federal Magistrates Court Rules 2001 (Cth) expressly provides that, to avoid doubt, a dismissal of an application for relief by the Federal Magistrates Court under r 44.12(1)(a) is interlocutory.

3. In Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, the Full Court of the Federal Court held that leave to appeal from an interlocutory judgment requires the applicant to show that there is sufficient doubt as to the correctness of the judgment below to warrant appellate review and, further, that if the judgment below is assumed to be wrong, substantial injustice would be suffered by the applicant if leave to appeal were refused.

4. The applicant is a citizen of India who arrived in Australia on 15 April 2006.  On 5 May 2006 he lodged an application for a Protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (now the Department of Immigration and Citizenship).  A delegate of the first respondent (respectively, the Delegate and the Minister) refused to grant the Protection visa on 6 June 2006.  On 30 June 2006 the applicant applied to the Tribunal for review of the Delegate’s decision.

5. The applicant claimed to fear persecution by the police and politically motivated radical Hindus and other political adversaries because of his past membership of a Muslim organisation.  The applicant claimed that in 2002 he was assaulted and that his arm was broken with an iron bar.  He said that the police were looking for him daily, and he and his family moved to Madras to live.  He also said, however, that he left his family in the village while he travelled to another State and then to Thailand.  He would return from Thailand to Madras from time to time but his wife warned him that extremists would track him down in Madras.

6. The Tribunal accepted the applicant’s claim that he suffered a physical attack in his local village and fled to Madras, which is some 300 kilometres from the village.  However, the Tribunal noted that the applicant had lived in Madras for a while and regularly returned to Madras from Thailand for visits.  According to his evidence he suffered no harm in Madras.  Accordingly, the Tribunal found it implausible that if the applicant were now to return to Madras, local Hindu extremists from his village, with whom he had had a dispute several years ago, would travel to Madras to attack him.

7. The Tribunal concluded that there was no real chance that the applicant might suffer serious harm should he return to India, and it therefore affirmed the Delegate’s decision. 

8. The applicant’s application for judicial review was filed in the Federal Magistrates Court on 31 January 2007.  At a directions hearing in that Court on 20 February 2007, the Federal Magistrate made orders by consent including an order that the proceeding be listed for a show cause hearing pursuant to r 44.12 on 17 April 2007.

9. The applicant filed an amended application in the Federal Magistrates Court on 5 April 2007. At the show cause hearing on 17 April 2007 the Federal Magistrate delivered an ex tempore judgment dismissing the application pursuant to r 44.12(1)(a) and ordered the applicant to pay the Minister’s costs in a sum of $1,600.

10. The Federal Magistrate set out the history of the visa application and summarised the applicant’s claims.  As well, his Honour summarised the Tribunal’s findings and reasons. 

11. The Federal Magistrate was faced with a difficulty in discerning the precise grounds on which the applicant relied in his amended application.  Various matters that were mentioned in the amended application were that:

    ·    the Tribunal had imposed too high an onus of proof on the applicant by requiring independent evidence supportive of his claims and by failing to give him the benefit of the doubt;

    ·    the Tribunal concentrated on individual elements of the applicant’s claims rather than considering at them as a whole;

    ·    the Tribunal acted in bad faith.

12. When he commenced this proceeding the applicant filed, in addition to his application for leave to appeal, a supporting affidavit and draft notice of appeal.  The affidavit restates the procedural history of the matter and seeks to assert the factual merits of the applicant’s claims. 

13. Unless it is infected by jurisdictional error, the Tribunal’s decision is a “privative clause decision” as defined by s 474(2) of the Act.  With respect to privative clause decisions, s 474(1) of the Act provides:

    A privative clause decision:

    (a)is final and conclusive; and

    (b)must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

    (c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court of any account.

14. In PlaintiffS157/2002 v Commonwealth of Australia (2003) 211 CLR 476, the High Court upheld the validity of s 474. It then went on to consider how s 474 should be reconciled with the remainder of the Act. The leading judgment is the joint judgment of Gaudron, McHugh, Gummow, Kirby and Hayne JJ (the joint judgment). Their Honours held (at [76]) that:

    ... the expression “decision[s] .. made under this Act” must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act.  Indeed so much is required as a matter of general principle.  This Court has clearly held that an administrative decision which involves jurisdictional error is “regarded, in law, as no decision at all”.  Thus, if there has been jurisdictional error because, for example, of a failure to discharge “imperative duties” or to observe “inviolable limitations or restraints”, the decision in question cannot properly be described in the terms used in s 474(2) as “a decision ... made under this Act” and is, thus, not a “privative clause decision” as defined in ss 474(2) and (3) of the Act.

    Section 474 therefore validly operates to prevent the judicial review of the Tribunal’s decision in the present case unless it was vitiated by jurisdictional error.

15. A difficulty with the draft notice of appeal is that it does not give particulars of the alleged errors in the judgment of the learned Federal Magistrate.  The grounds as stated in the draft notice of appeal are as follows:

    2.The single judge of the Federal Magistrate Court in his Honour’s judgment delivered on 17 April 2007 failed to find error of law, jurisdictional error procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth).

    3.The grounds and relief is very much similar with a recent High Court judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002).

    4.Recent High Court judgment; Plaintiff S157/2002 Commonwealth of Australia [2003] HCA 1 [sic – (2003) 211 CLR 476; [2003] HCA 2].

    5.The Federal Magistrate made a legal, factual and jurisdictional error in not properly applying the principles laid down by the Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

    6.The grounds and relief is very similar with a recent Federal Court judgment – SZCBB v Minister for Immigration and Multicultural and Indigenous Affairs.  [I have not been able to locate such a judgment.] 

    7.The Tribunal failed to see that the applicant had faced a lot of difficulties and if at all the Tribunal had some doubt, benefit of doubt should have been given to the applicant.

    8.The FM erred in failing to find that the Tribunal erred in law under section 476, section 426 and Migration Act 1958. The FM in his Honour’s judgment delivered on 17 April 2007 failed to find the error of law and relief under section 39B of the Judiciary Act.

    9.My point is that despite having attended the hearing, it became imperative that, before the Tribunal made up its mind to dismiss the application, such information was required to be sent to me in written to make comments, in order to fully compliance of section 424A as decided by the majority Judge of the High Court in SAAP [v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162].

16. The Minister submits that the draft notice of appeal raises arguments that were not relied upon before the Federal Magistrate, so that the applicant must show that it is expedient and in the interests of justice to allow them now to be raised, citing O’Brien v Komesaroff (1982) 150 CLR 310 at 319 and Coulton v Holcombe (1986) 162 CLR 1 at 7. The form of the draft notice of appeal fairly clearly follows a precedent that has been given to the present applicant (who appears in person on the hearing). I think that leave to rely on matters not raised before the Federal Magistrate should be refused, but it is expedient to address the grounds raised in any event. They are without substance.

17. The only two matters deserving comment are the matters raised in paras 5 and 9 of the draft notice of appeal.  In relation to ground 5, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 is irrelevant to the present case because the applicant’s ability to relocate within India in order to avoid harm was not an issue before the Tribunal. The applicant was already living in Madras and the Tribunal decided that he did not have a reasonable fear of being persecuted if he should return there to live. In addition, the Tribunal found that the applicant continued to visit his wife at their village on a fairly regular basis.

18. In relation to ground 9, it is suggested that the Tribunal failed to comply with s 424A of the Act.  There is no merit in this ground.  The information that formed the basis of the Tribunal’s reasons was information provided by the applicant to the Tribunal in his oral evidence before it, and accordingly s 424A(3)(b) of the Act applies.  For example, the information concerning the applicant’s travels to Madras and Thailand was provided by the applicant in his oral evidence.  To the extent that the information may have come from the applicant’s passport, that was a document which the applicant handed up at the hearing and for this reason, again, s 424A(3)(b) applies.

19. It is not shown that the Federal Magistrate erred or that the Tribunal committed a jurisdictional error.

20. For the above reasons the application for leave to appeal should be dismissed with costs.

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

Associate:

Dated:        8 August 2007

The Applicant appeared in person.
Solicitor for the First Respondent:	Ms K Hooper, DLA Phillips Fox
Date of Hearing:	3 August 2007
Date of Judgment:	3 August 2007