SZNFE v Minister for Immigration and Citizenship
[2010] FCA 362
FEDERAL COURT OF AUSTRALIA
SZNFE v Minister for Immigration and Citizenship [2010] FCA 362
Citation: SZNFE v Minister for Immigration and Citizenship [2010] FCA 362 Appeal from: SZNFE v Minister for Immigration and Citizenship [2010] FMCA 181 Parties: SZNFE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 326 of 2010 Judge: NICHOLAS J Date of judgment: 15 April 2010 Legislation: Federal Magistrates Court Rules 2001 rr 13.03C, 16.05(2)(a)
Federal Court of Australia Act1976 (Cth) s 24(1A)
Migration Act 1958 (Cth) ss 91S, 414, 420, 424, 424A, 430Cases cited: NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 cited
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 citedDate of hearing: 14 April 2010 Date of last submissions: 14 April 2010 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 21 The Applicant appeared in person Solicitor for the First Respondent: Clayton Utz
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 326 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNFE
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
15 APRIL 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.The application for injunctive relief is dismissed.
3.The applicant is to pay the first respondent’s costs in the amount of $1614.00.
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 Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 326 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNFE
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE:
15 APRIL 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
There are two applications before me. The first is an application for leave to appeal from a judgment of the Federal Magistrates Court (Barnes FM) given on 24 March 2010 dismissing the applicant’s application to set aside an order made on 22 October 2009 pursuant to Rule 13.03C(1)(c) of the Federal Magistrates Court Rules 2001 (see SZNFE v Minister for Immigration and Citizenship [2010] FMCA 181). Her Honour’s order dismissing that application was interlocutory; hence the application for leave to appeal which is now made by the applicant pursuant to s 24(1A) of the Federal Court of Australia Act1976 (Cth). The second application is for an interlocutory injunction restraining the first respondent (the Minister) from removing the applicant from Australia. The Minister is proposing to take that step tomorrow.
The hearing before the federal magistrate which resulted in the order against which the applicant seeks leave to appeal occurred over three days in January, February and March of this year. Judgment was delivered on 24 March 2010. Her Honour’s reasons for judgment reveal that the grounds of review relied upon by the applicant and other issues raised by her Honour independently of those grounds of review were the subject of careful and detailed consideration. Nevertheless, the applicant now alleges that the federal magistrate’s decision was affected by apprehended and actual bias. I will return to that allegation shortly.
The applicant, who claims to be a citizen of the Republic of Korea, arrived in Australia on 28 July 2008 and has been in detention since then. Shortly after his arrival he lodged an application for a protection visa which was refused on 10 October 2008. He applied to the Refugee Review Tribunal (the Tribunal) to have that decision reviewed. He was invited to attend a Tribunal hearing but declined to do so. On 13 January 2009 the Tribunal affirmed the delegate’s decision.
The Tribunal’s decision of 13 January 2009 was the subject of an application for judicial review brought by the applicant in the Federal Magistrates Court. On 7 May 2009 the Federal Magistrates Court (Scarlett FM) set aside the decision of the Tribunal and remitted the applicant’s visa application to the Tribunal for determination according to law.
The Tribunal, differently constituted, invited the applicant to attend a Tribunal hearing on 26 June 2009. The applicant declined that invitation. I will say something more about the relevance of that shortly. On 11 August 2009, the Tribunal affirmed the decision refusing the applicant a protection visa. It is that decision of the Tribunal to which this proceeding relates.
The federal magistrate referred at paras [12]-[15] of her reasons to the principles relevant to an application under Rule 16.05(2)(a) of the Federal Magistrates Court Rules. The applicant has not criticised this part of her Honour’s reasons for judgment in his proposed grounds of appeal or in any of his submissions to me.
It appears that the applicant’s explanation for his non-appearance at the hearing on 22 October 2009 was the subject of rather confused explanations. However, her Honour proceeded to deal with the application on the basis that the orders made consequent upon the applicant’s non-appearance would be set aside if her Honour was satisfied that the applicant’s application for review of the Tribunal’s decision had some prospect of success. This approach was generous to the applicant who, it could have been inferred, stayed away from both the Tribunal hearing and the Federal Magistrates Court hearing for forensic purposes.
I propose to consider the applicant’s application for leave to appeal on the same basis, that is to say, I propose to examine the proposed grounds of appeal which the applicant wishes to rely upon with a view to deciding whether the proposed appeal has any prospects of success. If it does not, then it must follow that the applications now before me should be dismissed.
The proposed grounds of appeal relied upon by the applicant are set out in an affidavit sworn by the applicant which was filed on 8 April 2010 in support of his application for leave to appeal. No particulars of the proposed grounds of appeal were provided. The written submissions filed by him are discursive and often confused. The same is true of the oral submissions made to me by the applicant. They did not shed much light upon the very general grounds of appeal sought to be relied upon.
I propose to consider each of the proposed grounds of appeal in turn.
First, the applicant contends that the federal magistrate was biased against him. That this is his contention was made clear in his oral submissions to me and from other material to which he directed me. The allegation of bias was not supported by any evidence or any reasoned submission. There is not the slightest suggestion on the material before me that the federal magistrate’s decision was affected by bias. This proposed ground of appeal has no prospect of success.
Secondly, the applicant contends that the federal magistrate erred in failing to find that the Tribunal committed “jurisdictional error pursuant to s 91S of the Migration Act.” Her Honour dealt with the applicant’s argument based upon s 91S in paras [73]-[75] of her reasons for judgment. I agree with her Honour’s reasons. There was no occasion for the Tribunal to apply s 91S given that the Tribunal was not satisfied that the applicant had a well founded fear of persecution within the meaning of the Convention. This proposed ground of appeal has no prospect of success.
Thirdly, the applicant contends that the federal magistrate erred in failing to find that the Tribunal had committed “jurisdictional error pursuant to s 414 of the Migration Act.” Her Honour dealt with s 414 in paras [99]-[107] of her reasons for judgment. Again, I agree with those reasons. This proposed ground of appeal does not have any prospect of success.
Fourthly, the applicant contends that the federal magistrate erred in failing to hold that the Tribunal committed “jurisdictional error pursuant to s 424 of the Migration Act.” Her Honour dealt with s 424 at paras [93]-[95] of her reasons for judgment. I agree with those reasons. Again, I do not think that this proposed ground of appeal has any prospect of success.
Fifthly, the applicant contends that the federal magistrate erred in failing to hold that the Tribunal committed “jurisdictional error pursuant to s 424A of the Migration Act.” Her Honour dealt with s 424A at paras [81]-[92] of her Honour’s judgment. I agree with her Honour’s reasons. This proposed ground of appeal does not have any prospect of success.
Sixthly, the applicant contends that the federal magistrate erred in failing to hold that the Tribunal committed “jurisdictional error pursuant to s 430 of the Migration Act.” Her Honour dealt with s 430 in para [109] of her Honour’s reasons for judgment. I agree with what her Honour there says. In particular, I am satisfied that the written statement prepared by the Tribunal complies with the requirements of s 430(1) of the Act. The question whether the alleged failure to comply with those requirements involved jurisdictional error does not arise.
Seventhly, the applicant contends that the federal magistrate erred in failing to hold that the Tribunal committed “jurisdictional error pursuant to s 420 of the Migration Act.” Her Honour did not deal with any argument based on s 420 of the Act. I was informed by the solicitor appearing for the Minister that this matter was not raised below. In any event, there is nothing before me which would suggest that this proposed ground of appeal has any prospect of success even if leave were given to the applicant to rely upon it. Failure to comply with s 420 does not of itself involve jurisdictional error: NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 at [35], citing Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [49], [108]-[109], [158], [179].
Eighthly, the applicant contends that the Tribunal did not afford him “procedural fairness”. Her Honour dealt with this challenge to the Tribunal’s decision in paras [130]-[140] of her reasons for judgment. I agree with her Honour’s reasons. The material sent by the applicant to the Tribunal in support of his application for review was evidently voluminous and discursive. The Tribunal wrote to the applicant advising him that it had considered that material but that it was unable to make a favourable decision on the basis of it alone. It then invited him to appear before the Tribunal to give evidence and present arguments relating to the issues arising in his case. As I have already mentioned, the applicant declined that invitation.
A central theme in the applicant’s submissions to me was that the reference by the Tribunal in its reasons for decision to the applicant’s failure to appear before it manifested bias on the part of the Tribunal and was evidence of a lack of procedural fairness. Similar contentions were dealt with by the federal magistrate at paras [130]-[140] of her reasons for judgment. I agree with her Honour’s reasons for rejecting those contentions.
At para [46] of its reasons for decision the Tribunal referred to the applicant’s claims which it described as “confused and difficult to understand”. At para [49] the Tribunal said that much of the voluminous material supplied by the applicant was “confused in its sense, is difficult to understand and the provenance of some of the documents provided is unclear.” There is no reason to doubt the Tribunal’s characterisation of the applicant’s claims or the materials supplied by him in support of those claims. And there is no reason not to accept that the Tribunal did its best to distil the applicant’s claims from the material provided to it by him just as it said it had in para [49] of its reasons for decision. There is certainly no basis for inferring that the Tribunal’s decision was affected by bias or that the applicant was otherwise not afforded procedural fairness.
It follows that I am not satisfied that the applicant has any arguable grounds of appeal which could justify him being granted leave to appeal. I therefore dismiss the applicant’s application for leave to appeal from the decision of the federal magistrate given on 24 March 2010. It follows that the claim for injunctive relief should also be dismissed. The applicant must pay the first respondent’s costs. I fix those costs in the amount of $1614.00.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 15 April 2010
0
3
0