SZNWW v Minister for Immigration and Citizenship

[2010] FCA 158

FEDERAL COURT OF AUSTRALIA

SZNWW v Minister for Immigration and Citizenship [2010] FCA 158

Citation:		SZNWW v Minister for Immigration and Citizenship [2010] FCA 158
Appeal from:		SZNWW v Minister for Immigration & Anor [2009] FMCA 1199
Parties:		SZNWW v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 1 of 2010
Judge:		FOSTER J
Date of judgment:		2 March 2010
Legislation:		Migration Act 1958 (Cth) ss 189, 424A, 425
Cases cited:		SZNWW v Minister for Immigration & Anor [2009] FMCA 1199 affirmed Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405, (2000) 168 ALR 407 applied SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 cited SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 applied
Date of hearing:	26 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	NO CATCHWORDS
Number of paragraphs:	48
The Appellant appeared in person
Counsel for the Respondents:	Mr P Reynolds
Solicitor for the First Respondent:	Clayton Utz
The Second Respondent submitted save as to costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNWW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	2 MARCH 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appellant’s application for leave to amend his Notice of Appeal be refused.

2.The appeal be dismissed.

3.The appellant pay the first respondent’s costs of and incidental to the appeal.

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 1 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNWW
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	FOSTER J
DATE:	2 MARCH 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate delivered on 14 December 2009 (SZNWW v Minister for Immigration & Anor [2009] FMCA 1199) in which the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) dated 7 September 2009 and handed down on 8 September 2009.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the delegate) to refuse to grant a Protection (Class XA) visa to the appellant.

2. The appellant is a citizen of Ghana who arrived in Australia on 3 April 2009 on a Business (Short Stay) visa.  Upon arrival at Sydney Airport, the appellant was interviewed by an officer of the Department of Immigration and Citizenship (the Department). At the conclusion of that interview, his visa was cancelled and he was refused immigration clearance. He was then detained under s 189 of the Migration Act 1958 (Cth) (the Act) and taken to the Immigration Detention Centre at Villawood, NSW. 

3. On 23 April 2009, with the assistance of a firm of lawyers who count amongst their specialties expertise in migration law, the appellant lodged with the Department an application for a Protection (Class XA) visa.  In a Statutory Declaration subscribed on 22 April 2009 which accompanied his Protection visa application, the appellant claimed to be an Abudu by ethnicity, one of the two dominant ethnic groups in that part of Ghana where he said he lived.  He claimed that, as was common amongst ethnic Abudus, he had been a supporter of the New Patriotic Party (NPP) although he had never been a member of the NPP.  The appellant said that he had travelled to various parts of the country prior to the December 2008 elections in Ghana, encouraging people to vote for the NPP.  The appellant also alleged that, as a consequence of these activities, he had attracted adverse attention from supporters of the opposing party, the National Democratic Congress (NDC).  The NDC was supported by the other main ethnic group in the area where he lived, the Andani. 

4. In his Statutory Declaration, the appellant claimed to have lived in Gumbihini, a suburb of Tamale.  He said that he was a teacher who also led prayers and acted as an Imam.  The appellant claimed that there had been political violence in Ghana in the lead up to the December 2008 elections.  He also claimed that, after the NDC was declared the winner of those elections, there was a significant increase in politically motivated violence, especially by NDC members against NPP members.

5. The appellant claimed that threats had been made against him and that NDC members had threatened to kill him.  The appellant claimed that, on 18 February 2009, NDC members and ethnic Andani had attacked his village.  He said that, as a consequence of that attack, he had fled his village.  He said that his wife and children had escaped to Togo and that he had fled to Australia.  The appellant also claimed that, during the violence of 18 February 2009, the NDC supporters had burned down his house and destroyed his Benz bus.

6. The appellant claims that his ethnicity as well as his political affiliation with the NPP makes him a target for persecution.  The appellant also claims that he fears that, if he returns to Ghana, he will be targeted and harmed because of his support of the NPP.  He also fears that members of the Andani will attempt to kill him or seriously harm him on account of his status as an ethnic Abudu.  He claims that the conflict between the Andani and the Abudu is the central reason for his fear of returning to Ghana.  The appellant contends that the authorities in Ghana are unable or unwilling to provide effective protection to him because those authorities are controlled by the NDC. 

7. The delegate refused the appellant’s application for a Protection visa on 29 May 2009.  The delegate concluded that the appellant did not have a well-founded fear of persecution for a Convention related reason.  At best, the appellant’s fears concerned only the prospect of private harm.  The delegate took the view that the police in Ghana could provide effective protection to the appellant, especially as he was able to relocate to an area of the country which was likely to be less hostile to him where he could satisfactorily deploy his skills as a business owner.

   THE PROCEEDINGS IN THE TRIBUNAL

8. On 1 June 2009, the appellant applied to the Tribunal for a review of the delegate’s decision. 

9. The Tribunal originally fixed the appellant’s review application for hearing on 14 July 2009.  In a letter dated 3 June 2009, the Tribunal invited the appellant to appear before it to give evidence and to present arguments relating to the issues arising in his case.  On 7 July 2009, the Tribunal rescheduled the appellant’s hearing to 31 July 2009.  On 8 July 2009, the appellant completed and forwarded a Response to Hearing Invitation to the Tribunal.  He sent a further completed Response to Hearing Invitation on 15 July 2009.  There is no difference between the two Response documents. 

10. In a letter dated 21 July 2009, the appellant’s lawyers forwarded submissions to the Tribunal.  The next day, they also sent various documents to the Tribunal in support of the appellant’s application for review.

11. On 31 July 2009, the Tribunal commenced its hearing of the appellant’s application.  On that day, the Tribunal adjourned the hearing until 6 August 2009.  The hearing resumed on 6 August 2009 and was completed on that day.

12. After the hearing before the Tribunal, the Tribunal forwarded to the appellant a letter dated 7 August 2009 in which the Tribunal set out a number of difficulties which it had with the appellant’s version of events. The Tribunal sought a response from the appellant which he provided by letter dated 12 August 2009. The Tribunal’s letter dated 7 August 2009 was sent to the appellant pursuant to s 424A of the Act.

13. On 13 August 2009, lawyers representing the appellant sought an extension of the time by which the appellant was required to respond to the Tribunal’s s 424A letter dated 7 August 2009. By 13 August 2009, the appellant had already personally replied to that letter. The Tribunal nonetheless granted the requested extension of time.

14. The appellant was displeased that his lawyer had requested an extension of time. He said that his lawyer had done so without instructions. He told the Tribunal that he relied upon the response which he had personally made in his letter of 12 August 2009 and asked the Tribunal to proceed to decide his case on the basis of the material then before it. In a letter dated 19 August 2009 from the Tribunal to the appellant, the Tribunal said that it would proceed to make its decision and that, before doing so, it would consider the appellant’s letter of 12 August 2009 which it took to be his response to the Tribunal’s s 424A letter dated 7 August 2009. The appellant was apparently content with this approach as he raised no objection to it.

15. In its Reasons, the Tribunal considered the appellant’s claims in detail. It did so by reference to the interview which he had had with an officer of the Department, the appellant’s Protection visa application, the evidence which he gave before the Tribunal on 31 July 2009 and on 6 August 2009 and his response to the s 424A letter of 7 August 2009. It also referred to relevant independent country information.

16. The Tribunal found that the appellant is an Abudu and is of the Islamic faith.  It also accepted that there had been ongoing conflict in Ghana between the NPP and the NDC in the period referred to by the appellant in his claims.  However, the Tribunal formed the view that the appellant was not credible on some key aspects of his claims and was therefore not satisfied that he had left Ghana because of a genuine fear of persecution.  The Tribunal (at [78] and [79] of its Reasons) did not accept that the appellant was a prominent and long time supporter of the NPP and did not accept that he had been or would be targeted because of his ethnicity, his religion or his political opinion were he to return to Ghana.  Whilst the Tribunal accepted that some photographs submitted by the appellant showed images of damaged vehicles and properties, it did not accept that any of the vehicles or properties depicted in those photographs belonged to the appellant. 

17. At [30] and [31] of the Tribunal’s Reasons, the member said: 

    30.I mentioned to the applicant that the delegate had accepted his claims that he had been involved with the NPP and that his property had been damaged. I told the applicant that the Tribunal was not bound by what the delegate accepted and it was the Tribunal’s responsibility to discuss the applicant’s claims and come to its own conclusions regarding those claims.  The applicant stated that he understood.

    31.I asked the applicant if he had any difficulty with the interpreter.  He said he did not.  The applicant told the Tribunal that he was born on 12 October 1960 in Kumasi.  He attended a Muslim school.  He can speak English and Arabic as well as his native language.

18. In the succeeding 30 or so paragraphs of the Tribunal’s Reasons ([32]–[61]), the Tribunal member recorded in considerable detail the appellant’s claims, the questions which the member had asked the appellant at the hearings on 31 July 2009 and 6 August 2009 and the answers which he gave to those questions.  It is not necessary to list comprehensively in these Reasons the many matters to which the member referred in this section of the Tribunal’s Reasons.  It is sufficient to note that, on a fair reading of these paragraphs, the Tribunal drew to the attention of the appellant all matters which it was required to point out to him and did so adequately and fairly.

19. In its Reasons, the Tribunal also set out in full its s 424A letter dated 7 August 2009 and the appellant’s response dated 12 August 2009. It plainly considered both letters before making its decision, as it had said it would do in its letter to the appellant dated 19 August 2009.

20. At [77] of its Reasons, the Tribunal said:

    The Tribunal has taken into account the applicant’s claims in his protection visa application, his evidence during his Departmental interview and before the Tribunal.  The Tribunal has also considered country information reports, photographs, two letters headed “Hajj Black Panther Enterprise” dated 29 March 1996 and 28 April 2009 and the adviser’s submissions.  The Tribunal notes that the delegate accepted that the applicant was a supporter of the NPP who had assisted in their recent campaign and may have been identified as an NPP supporter.   The delegate also found it plausible that the applicant was targeted by members of the NDC which is the current ruling party in Ghana. The Tribunal informed the applicant that even though the delegate had accepted the applicant’s claims, the Tribunal is not bound by what the delegate found and that it was the Tribunal’s responsibility to discuss with the applicant his claims and come to its own conclusions regarding those claims.  The applicant indicated that he understood. 

21. Accordingly, for the reasons explained by the Tribunal in detail, the Tribunal found that the appellant did not have a well-founded fear of persecution in Ghana for a Convention reason.  It therefore affirmed the delegate’s decision not to grant a Protection (Class XA) visa to the appellant.

    THE APPELLANT’S APPLICATION IN THE FEDERAL MAGISTRATES COURT

22. The appellant sought judicial review of the Tribunal’s decision by filing an Application in the Federal Magistrates Court on 10 September 2009.  The appellant’s application for judicial review did not set out any orders sought or any grounds of review.  It merely stated:

    1.        RRT refusal for protection visa application.

    in that part of the form where he was required to state the final orders sought by him and went on to specify as the sole ground of his application:

    1.        My application was refused by RRT.

23. In an affidavit sworn by him on 9 September 2009 filed in support of his application for judicial review, the appellant said:

    1.I disagree with the RRT’s negative decision.

    2.I request the Honourable Judge to set aside the RRT’s decision.

24. The Federal Magistrate recorded that, in a later affidavit filed on 23 October 2009, the appellant said:

    I am appealing to the Minister to grant me a permanent residence visa on humanitarian grounds.

    THE DECISION OF THE FEDERAL MAGISTRATE

25. After reviewing the history of the appellant’s attempts to secure a permanent place in Australia and after referring to the Minister’s submissions, the Federal Magistrate proceeded to determine the appellant’s application for judicial review of the Tribunal’s decision.  Before doing so, the Federal Magistrate held (as was plainly correct) that the Federal Magistrates Court had no power to grant a visa to the appellant on humanitarian grounds and had no power to require the Minister to do so.  He also noted that the appellant’s submissions before him addressed factual matters concerning his refugee claims and went directly to the merits of those claims.  He noted that the appellant had not attempted to demonstrate any jurisdictional error on the part of the Tribunal.

26. At [46]–[50], the Federal Magistrate said:

    46. The applicant has not identified any jurisdictional error on the part of the Tribunal and has relied on an attempt to obtain a reconsideration of the merits of the factual aspects of his refugee claims. It is well established that a Court conducting judicial review does not undertake merits review of the applicant’s factual claims (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259 at [24]). In Wu Shan Liang, Kirby J said at [24];

    Specifically, the reviewing judge must be careful to avoid turning an examination of the reasons of the decision-maker into a reconsideration of the merits of the decision where the judge is limited to the usual grounds of judicial review, including for error of law.

    47. It is clear that this decision turned on the question of the applicant’s credibility, which is a matter for the decision-maker, not the Court. The Tribunal's finding as to the applicant’s credibility was essentially a finding as to whether the applicant should be believed in his claim, which is the function of the primary decision-maker (Re Minister for Immigration and Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407; 74 ALJR 405 per McHugh J at [67]).

    48. There was evidence upon which it was open to the Tribunal to make such a finding, which is, after all, a finding of fact. The Tribunal set out its reasons for making its adverse credibility finding at paragraph [78] of its decision (Court book 456–457).

    49.There is no error in the way the Tribunal made its findings about the applicant’s credibility.

    50. Noting that the applicant was not legally represented at the hearing, the Court has independently considered whether there is any arguable case of jurisdictional error.

27. The Federal Magistrate went on to hold that there had been no breach of s 424A of the Act nor had there been any breach of s 425 of the Act in the present case. In particular, he noted that the Tribunal had provided to the appellant an interpreter in the Twi language (the language requested by the appellant) and that the appellant had made no complaint about the quality or suitability of the interpreting which had occurred at the Tribunal hearing. The Federal Magistrate concluded that the appellant had been made fully aware at the start of the hearing that everything was in issue and had been given a fair opportunity to provide evidence and to make submissions on all relevant matters. He therefore concluded that there had been no breach of s 425 of the Act. Ultimately, at [57] of his Reasons, the Federal Magistrate said:

    There is no jurisdictional error.  The Tribunal decision is a privative clause decision and, as such, is final and conclusive and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account (s. 474(1)). 

28. Having no found no jurisdictional error in the Tribunal decision, the Federal Magistrate dismissed the appellant’s application with costs.

    THE APPEAL IN THIS COURT

29. The appellant filed a Notice of Appeal in this Court on 4 January 2010.  He sought a writ of prohibition prohibiting the respondents from giving effect to the delegate’s decision which had been affirmed by the Tribunal.  The Grounds of Appeal specified in that Notice of Appeal were as follows:

    1.That the Federal Magistrate erred in not considering that the Refugee Review Tribunal failed to accord procedural fairness to me.

    2. That the Federal Magistrate erred in finding that there was no error in the way the Tribunal made its findings about my credibility

    3.That the Federal Magistrate erred in not considering that the Tribunal failed to give due consideration to the evidence that I submitted on the basis of its credibility findings against me

    4 That the Federal magistrate erred in not considering that the Tribunal should have taken into consideration the obvious disagreement with me and my Migration Agent, and my obvious and general confusion about the process, and considering that I was (and still am) in Immigration Detention, and as such was prevented from presenting my case properly.

    5.That the Federal Magistrate erred in not finding that the Tribunal had breached s.425 of the Act when accepting my own written reply on the 12th of August 2009 and not taking into account the fact that due to my being in Immigration Detention I did not have access to an interpreter service or other legal advice (apart from the Agent that I had had disagreements with) to explain to me the significance of the questions that he had asked me.

1. In a document filed on 24 February 2010, the appellant sought leave to raise additional grounds of appeal. He wishes to contend that the Federal Magistrate erred when he found that the Tribunal had complied with s 425 of the Act. His argument is that the Tribunal had failed to identify with particularity the issues of concern to it and had merely given a generic warning. He relies upon the statements made by the Tribunal at [30], [31] and [77] of its Reasons in support of this contention.

2. The appellant did not file a Written Submission.  With the aid of an interpreter, however, he did make oral submissions to me.  Although these submissions took some time, it became apparent as the matter progressed that the appellant was directing all of his energies and attention to the merits of his refugee claims, as he had done before the Federal Magistrate.  In a sense, this was not surprising, given the terms in which the appellant had expressed his grounds of appeal in his Notice of Appeal.  In an affidavit filed on 15 February 2010, the appellant sought to support some of his grounds of appeal with argumentative material.  He also supported his application for leave to amend his Notice of Appeal in a later affidavit filed on 24 February 2010. 

   CONSIDERATION

3. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 the High Court, in a unanimous judgment, at [32]–[35] said:

   32       In Alphaone the Full Court rightly said ((1994) 49 FCR 576 at 590-591):

   It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.

   (Emphasis added.)

   33The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review” (s 425(1) (emphasis added)). The reference to “the issues arising in relation to the decision under review” is important.

   34Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language “arising in relation to the decision under review” is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister’s delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons.

   35The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”. That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.

4. These passages address the obligations on the Tribunal to identify and communicate to the applicant for review those issues which the Tribunal considers might be dispositive of the matter before it. The focus of the passages which I have extracted at [32] above is on the issues.

5. In his application to amend his Notice of Appeal, the appellant contends that, not only was the Tribunal obliged to alert him to any issues in addition to those addressed by the delegate which the Tribunal considered might be dispositive of the application before it, but that it was also incumbent upon the Tribunal to inform the appellant that it had under consideration the possibility of making a different finding from that which the delegate had made in respect of particular issues which issues had nonetheless been clearly identified by the delegate.  I do not think that the reasoning in SZBEL 228 CLR 152 goes that far.

6. In any event, in the circumstances of the present case, the Tribunal more than adequately communicated to the appellant that it did not necessarily accept all of the findings which the delegate had made. In particular, the Tribunal alerted the appellant to the fact that it did not necessarily accept his claims that he had been involved with the NPP and that his property had been damaged. Other doubts which the Tribunal had about the appellant’s claims were communicated to him during the hearings on 31 July 2009 and on 6 August 2009. Particular concerns were also drawn to his attention in the Tribunal’s s 424A letter dated 7 August 2009.

7. The appellant’s proposed additional grounds of appeal have no prospect of succeeding.  I therefore refuse the appellant’s application for leave to amend his Notice of Appeal to raise the matters notified in the affidavit filed by him on 24 February 2010.

8. I now turn to deal with the grounds specified in the appellant’s Notice of Appeal.

   Ground 1 (The Tribunal’s Failure to Accord Procedural Fairness to the Appellant)

9. The appellant provided no particulars of this allegation nor did he seek to develop it during the course of his oral submissions.

10. The Federal Magistrate noted that the Tribunal’s decision had essentially turned on the appellant’s credibility which was quintessentially a matter for the decision-maker, not the Court (see the Federal Magistrate’s Reasons at [47]–[48]). The Federal Magistrate also found that the Tribunal had complied with its obligations under s 424A and s 425 of the Act. He went on to find that the Tribunal’s letter dated 7 August 2009 set out the concerns which the Tribunal then had and that the appellant had been given an opportunity to reply to that letter. The appellant had availed himself of that opportunity in his response dated 12 August 2009. The appellant’s response had been considered by the Tribunal before it made its decision. The appellant had been invited to the Tribunal hearing. He had attended at that hearing. The appellant had made no complaint about the standard of interpretation which was afforded to him at the Tribunal hearing and had been made fully aware of the determinative issues of the review.

11. No error can be found in the reasoning of the Federal Magistrate which I have summarised at [39] above. There is no basis for a finding that the Tribunal denied procedural fairness to the appellant.

12. In his affidavit filed in this Court on 15 February 2010, the appellant raised a fresh procedural fairness argument. He sought to suggest that the conduct of his legal representatives in seeking an extension of the time within which he might reply to the Tribunal’s s 424A letter dated 7 August 2009 had somehow led to a state of affairs where he was denied procedural fairness. He asserted that, because he was in immigration detention and did not have access to an interpreter or legal advice from someone other than the lawyers with whom he was in dispute, he was denied procedural fairness.

13. The evidence does not establish that the conduct of the appellant’s legal representatives operated in some way to deprive him of a fair opportunity to respond to the Tribunal’s s 424A letter. He had no difficulty in responding to that letter and was quite content to allow the Tribunal to proceed to decide his application in light of his response. In my judgment, there is no merit in the additional matters raised in the appellant’s affidavit filed on 15 February 2010.

    Ground 2 (The Appellant’s Challenges to the Tribunal’s Findings Concerning his Credibility)

14. This was the ground in which the appellant placed the greatest store. As I have already mentioned at [31] above, the thrust of the appellant’s submissions made before me was that the Tribunal had simply made incorrect findings of fact and had not accepted his claims when it should have done so. The appellant’s credibility was a matter for the Tribunal (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 74 ALJR 405, (2000) 168 ALR 407 at [67] (per McHugh J). No error can be found in the reasoning of the Federal Magistrate in which he applied the principles articulated in that case.

    Ground 3 (The Tribunal’s Failure to Give Due Consideration to Evidence)

15. There is no evidence to support this ground.  The reasons of the Tribunal make plain that it considered all of the material which it had before it, including documentary material submitted to it by the appellant and his lawyers.  The fact that the Tribunal did not accord to this material the importance and weight which the appellant submitted the material should be given does not constitute jurisdictional error.  The weight to be given to such material was clearly a matter for the Tribunal.

    Ground 4 (Failure to Accord Weight to the Appellant’s Dispute with his Lawyers)

16. Whatever dispute may have arisen between the appellant and his lawyers, it seems to have come to a head in early August 2009, after the Tribunal hearing had concluded.  For reasons which I have already explained at [41] and [42] above, this dispute did not have … the immediate consequence of stultifying the operation of the legislative scheme to afford natural justice to the appellant … (see SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 at [49]). The appellant has failed to make out this ground of appeal.

    Ground 5 (Breach of s 425 of the Act)

17. I have already addressed the gravamen of this complaint at [32]–[36] and at [41] and [42] above. There is nothing to support the appellant’s contention that he did not have access to an interpreter or appropriate legal advice before he wrote his response of 12 August 2009 or, more importantly, that the appellant did not appreciate the significance of the subject matter of the Tribunal’s s 424A letter dated 7 August 2009. The appellant’s response to the Tribunal’s s 424A letter demonstrates that he did understand why the information referred to in the Tribunal’s s 424A letter was relevant to the review, how he should respond to the concerns articulated in that letter and the consequences of the Tribunal relying upon that letter in coming to a decision to affirm the delegate’s decision. This ground of appeal must also be rejected.

    CONCLUSIONS

18. None of the grounds of appeal relied upon by the appellant have been made out.  The appellant has been unable to demonstrate appellable error on the part of the Federal Magistrate.  The Federal Magistrate found that the Tribunal had not committed any jurisdictional error.  The appellant’s complaints in both the Federal Magistrates Court and in this Court are complaints which are essentially directed to the merits of his refugee claims and to the findings of fact and findings relating to his credibility made by the Tribunal.  Challenges of this type do not constitute jurisdictional error and the refusal on the part of the Federal Magistrate to uphold such challenges did not constitute appellable error.

19. For these reasons, the appeal must be dismissed with costs.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:        2 March 2010