SZLUK v Minister for Immigration & Citizenship

[2008] FCA 1720

FEDERAL COURT OF AUSTRALIA

SZLUK v Minister for Immigration & Citizenship [2008] FCA 1720

SZLUK and SZLUL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1294 of 2008

PERRAM J
3 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1294 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLUK
First Appellant

SZLUL
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	3 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the costs of the first respondent in the sum of $2,200.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1294 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLUK
First Appellant

SZLUL
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	PERRAM J
DATE:	3 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellants are citizens of India who arrived in Australia on 17 March 2007.  On 1 May 2007 the appellants lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the first respondent, who is the Minister, refused the application for a protection visa on 25 June 2007.  On 23 July 2007 the appellants   applied to the Refugee Review Tribunal (“the Tribunal”) for a review of that decision.  The first appellant is a gentleman from India, born in 1974, and the second appellant is a woman born in India in 1976.  She is the wife of the first appellant.  Before the Tribunal, the husband claimed that he was the subject of persecution at the hands of various criminals, thugs and extortionists in consequence of his being a businessman.

2. Ultimately, on 6 November 2007, the Tribunal concluded that he was not a person who was entitled to protection within the meaning of the Convention.  On 20 December 2007 the appellants applied to the Federal Magistrates Court for a judicial review of that determination by the Tribunal.  Ultimately, an amended application was prepared.  That amended application pursued two grounds, both of which the Federal Magistrates Court found had not been made out.  In consequence, the learned federal magistrate, on 6 August 2008, dismissed the present appellants’ application and ordered them to pay the Minister’s costs in the sum of $5,000.  From those orders, the appellants now appeal to this Court.

3. The grounds of the appeal are set out in the appellants’ notice of appeal:

   1.The Honourable Federal Magistrates Court erred in law in determining whether this matter was reviewable in the Federal Magistrates Court.
   2.The Honourable Court also erred in law determining that the Federal Magistrates Court did not have the jurisdiction to review this matter.
   3.The Honourable court failed to determine whether there was any jurisdictional error in the purported decision of the delegate.
   4. The Federal Magistrate erred in law in determining that the application was an abuse of process.
   5.I will provide more details later.

4. It is convenient to deal with those grounds in turn.  The first ground is an allegation that the learned federal magistrate erred in law in determining “whether this matter was reviewable in the Federal Magistrates Court.”  Construing that ground beneficially, I would interpret it as a suggestion that the learned federal magistrate erred by concluding that the matter was not reviewable before him.  So construed, the ground appears to me to be without substance.

5. It is apparent from his reasons that the learned magistrate considered the two grounds which were pursued before him and rejected them.  If ground one does not refer to a failure by the federal magistrate to comprehend that he had jurisdiction to review the decision, then I am unable to ascribe to ground one a meaningful construction.  In neither case does the ground of appeal provide a basis upon which the learned federal magistrate’s decision could be reversed.

6. I turn, then, to the second ground of appeal.  By this ground, the appellants contend that the federal magistrate erred by determining that he did not have jurisdiction to review the matter.  In my opinion, this ground is entirely without substance.  To read the reasons of the federal magistrate is to see at once that he precisely understood that he had jurisdiction to review the matter.  Of course, “review” means review for jurisdictional error.  To the extent that ground two complains that the learned magistrate failed to comprehend that he had a jurisdiction to review non-jurisdictional errors, that ground is, of course, doomed to fail.

7. I then turn to ground three.  Ground three appears to be directed to jurisdictional error in relation to the decision of the delegate, rather than the Tribunal.  There is no utility in investigating whether the decision of the delegate was afflicted by jurisdictional error or not.  The question for the federal magistrate was whether the Tribunal’s decision was afflicted by jurisdictional error.  It answered that question negatively for the appellants.  In doing so, it did not err.

8. The fourth ground alleges that the federal magistrate erred in law in determining that the application was an abuse of process.  The learned magistrate made no such finding at all, and one can, regrettably, only form the opinion that the person who prepared the notice of appeal did not go to the trouble of reading the decision of the federal magistrate.  In any event, this ground does not disclose a basis upon which the federal magistrate’s decision could be reversed.

9. The appellants indicated in their notice of appeal that they would provide “more details later”.    During the hearing before me, the husband indicated that he wished to tender some medical records which indicated that he had been hospitalised in June.  At the hearing before the Tribunal, the husband had also indicated that he wished to tender some further documents.  A period of 15 days was set within which he was to provide those documents.  The husband did not provide those documents to the Tribunal within that timeframe or at all.  Before me, the husband agreed that the documents he wished to tender were the same documents he mentioned to the Tribunal.  They prove nothing about the Tribunal’s jurisdiction.  In those circumstances, I do not think that even if the matter had been raised before the federal magistrate that these documents would have assisted in showing the existence of a jurisdictional error.  It follows that none of the grounds of appeal is made out and 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 Perram.

Associate:

Dated:        24 November 2008

The appellants appeared in person.
Solicitor for the Respondents:	Ms N Johnson of Sparke Helmore

Date of Hearing:	3 November 2008
Date of Judgment:	3 November 2008