SZMWE v Minister for Immigration & Citizenship
[2009] FCA 848
•3 August 2009
FEDERAL COURT OF AUSTRALIA
SZMWE v Minister for Immigration & Citizenship [2009] FCA 848
SZMWE and SZMWF v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 301 of 2009
SPENDER J
3 AUGUST 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 301 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMWE
First AppellantSZMWF
Second AppellantAND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SPENDER J
DATE OF ORDER:
3 AUGUST 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellants pay the costs of the first respondent.
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
GENERAL DIVISION
NSD 301 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMWE
First AppellantSZMWF
Second AppellantAND: MINISTER FOR IMMIGRATION & CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SPENDER J
DATE:
3 AUGUST 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal by the male and female appellants, who have the pseudonyms SZMWE and SZMWF.
The appeal is from a judgment of Driver FM given on 20 March 2009 dismissing with costs the appellants’ respective applications for judicial review of the Refugee Review Tribunal (the Tribunal) who, in a decision handed down on 23 September 2008, rejected the appellants’ claims and affirmed the decisions of the first respondent not to grant protection visas.
Unfortunately, as is commonly the case, the appellants seem to have a serious misunderstanding of the function of the Federal Court of Australia in these matters.
The criticisms that have been articulated on behalf of both appellants by the male appellant, who is the brother of the female appellant, focus exclusively on the proceedings before the Tribunal. The grounds of appeal, apart from the first, are directed entirely at allegations concerning the Tribunal’s handling of their applications to it. These appeals are appeals from the Federal Magistrates Court and it is necessary, if the appellants are to succeed, that they establish error in the judgment of the Federal Magistrate.
Before the Federal Magistrate each appellant was represented by counsel. They alleged jurisdictional error arising from a breach of s 425 of the Migration Act 1958 (Cth) (the Act), and said that they were not given a sufficient opportunity to give evidence or make submissions on determinative issues. The first of those was the inherent incredibility of the appellant brother’s claims in relation to his obtaining a passport illegally in order to take a holiday with his sister, and the second was his distribution of pamphlets against police violence.
Driver FM found that the appellants should have been on notice from the delegate’s decision that issues relating to his passport and his asserted political activities would be essential and significant issues for the purposes of the Tribunal’s review. Further, Driver FM found that the Tribunal had sufficiently raised these matters with the appellants at the hearing. The transcript of the proceedings before the Tribunal was before the Federal Magistrate.
The Federal Magistrate found that, having regard to the delegate’s reasons and the matters raised orally by the Tribunal during the hearing, no doubt could be entertained that the credibility of their claims was in issue. His Honour rejected the ground based on s 425 of the Act.
Similarly, his Honour rejected the ground based on s 424A, finding that the Tribunal had adequately particularised the information from the letter of a particular travel agent and had explained how that information conflicted with the appellants’ evidence. Neither of those grounds was raised before this Court.
The first ground of appeal to this Court alleges that the Federal Magistrate erred in finding that the Tribunal had made its decision properly and fairly. The fifth ground says:
We have never believed that our review application has been assessed by the Tribunal, fairly and properly.
At best for the appellants, the first ground may be construed as alleging an error by Driver FM in failing to find jurisdictional error on the two grounds involving ss 424A and 425 of the Act which were argued before his Honour. The reasons for judgment of the Federal Magistrate indicate that his Honour clearly addressed those grounds and his reasons do not disclose any error in his conclusions in rejecting the grounds based on those two sections of the Act.
The other grounds were not advanced before the Federal Magistrate. That is a very real difficulty for the appellant. In any event grounds 2, 3 and 4 are unparticularised. There is nothing to suggest that the Tribunal approached its task other than with an open mind. Grounds 3 and 4 essentially seek to challenge the merits of the Tribunal’s findings, which is impermissible when what has to be established is jurisdictional error.
As I earlier said, the appeals by the appellants illustrate a lack of understanding of the basis on which this Court can properly allow an appeal from a Federal Magistrate. There is nothing in the grounds and submissions that have been advanced by the appellants to indicate that there was any error in the judgment of Driver FM, with the consequence that the Tribunal’s decisions are accordingly privative clause decisions within the meaning of s 474(1) of the Act.
For these reasons the appeal has to be dismissed with costs.
The orders of the Court are as follows:
(1) the appeal is dismissed;
(2) the appellants pay the costs of the first respondent.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate:
Dated: 7 August 2009
The Appellants appeared in person: Counsel for the Respondents: Mr HTP Bevan Solicitor for the Respondents: Australian Government Solicitor
Date of Hearing: 3 August 2009 Date of Judgment: 3 August 2009
0
0
0