SZRAX v Minister for Immigration and Citizenship

[2013] FCA 493

FEDERAL COURT OF AUSTRALIA

SZRAX v Minister for Immigration and Citizenship [2013] FCA 493

Citation:		SZRAX v Minister for Immigration and Citizenship [2013] FCA 493
Appeal from:		SZRAX v Minister for Immigration & Citizenship [2013] FMCA 116
Parties:		SZRAX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 492 of 2013
Judge:		LOGAN J
Date of judgment:		20 May 2013
Catchwords:		MIGRATION – appeal from decision of Federal Magistrate dismissing application for judicial review of the Refugee Review Tribunal – whether Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) – whether appellant denied natural justice – appeal dismissed
Legislation:		Migration Act 1958 (Cth) s 424A
Cases cited:		Attorney-General (NSW) v Quin (1990) 170 CLR 542 Minister for Immigration and Citizenship v Li [2013] HCA 18
Date of hearing:	20 May 2013
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	10
Counsel for the Appellant:	The Appellant appeared in person with the assistance of an interpreter
Solicitor for the Respondents:	Minter Ellison

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 492 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRAX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	20 MAY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs of and incidental to the appeal to be taxed, if not agreed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 492 of 2013

ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA

BETWEEN:

SZRAX
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	20 MAY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of Bangladesh.  He came to Australia on 5 April 2010.  Later that month, on 30 April 2010, he applied under the Migration Act 1958 (Cth) for that class of visa which is known as a protection visa. On 12 November 2010, a delegate of the Minister for Immigration and Citizenship (Minister), who is the first respondent to this appeal, decided to refuse to grant that visa to the appellant. Thereafter, on 6 December 2010, the appellant sought the review of that decision of the Minister’s delegate by the Refugee Review Tribunal (Tribunal). On 15 December 2011, the Tribunal decided to affirm the Minister’s delegate’s decision not to grant a protection visa to the appellant.

2. The appellant then sought the judicial review of the Tribunal’s decision by the Federal Magistrates Court Australia (now the Federal Circuit Court of Australia) (Federal Magistrates Court).  On 28 February 2013, the Federal Magistrates Court dismissed with costs that judicial review application.  The appellant now appeals to this Court from the judgment of the Federal Magistrates Court. 

3. The grounds of appeal do no more than recite what were the grounds of review before the Federal Magistrates Court.  Those grounds were these: 

   (1)the RRT member made a jurisdictional error by failing to comply with section 424A of the Migration Act;

   (2)the RRT member denied me natural justice by not believing that me and my family lived long term in the CHT, and it gave no reasons for this, but by denying that I was a long term residence of the CHT, it decided in part that I was not a refugee. 

4. A notice of appeal in respect of an appeal to this Court from the Federal Magistrates Court must specify grounds which engage with and allege error in the judgment of that court.  That proposition was not lost on the Minister.  Quite fairly, however, upon the hearing of the appeal today the Minister adopted the approach of treating the specified grounds in the notice of appeal as if they were bases upon which the appellant contended that the Federal Magistrates Court should have found jurisdictional error on the part of the Tribunal.  It is something of an indulgence to approach the hearing and determination of the appeal in that way, but to do otherwise would not, I consider, do justice to the appellant.

   SECTION 424A OF THE MIGRATION ACT

5. The federal magistrate (as he then was), at para 14, correctly concluded that the information upon which the Tribunal had relied in reaching its decision was either information which the appellant himself had given to the Tribunal or was independent country information concerning Bangladesh. The federal magistrate’s consequential conclusion in light of this, that such information fell within the scope of the exceptions to the obligation otherwise created by s 424A, was correct. To this, I would add, in light of the course of submissions today by the appellant with respect to proceedings in the Tribunal, that the Tribunal was not obliged to provide anything in the nature of a running commentary in the course of the hearings that it afforded the appellant as to whether or not the Tribunal believed particular information being given to it by the appellant. It is no part of the obligation which falls on the Tribunal to afford a review applicant a hearing, if so requested, to give any such commentary. More particularly, the thought processes of the member constituting the Tribunal do not, themselves, constitute information for the purposes of s 424A.

   THE NATURAL JUSTICE GROUND

6. The summary offered by the learned federal magistrate at para 15 of his Honour’s reasons could equally apply to the appellant’s submissions, oral and written, to this Court.  By that I mean that, on the appeal also, the appellant stressed his dissatisfaction with the conclusions reached by the Tribunal and advanced various reasons for that dissatisfaction. 

7. The appellant’s claim for a visa had, as its foundation, his adherence to the Buddhist faith and a fear of persecution in Bangladesh based on his religious beliefs, having regard to conduct by Muslims towards members of the Buddhist faith.  Regard to the Tribunal’s reasons discloses a comprehensive and sophisticated engagement by the Tribunal with the basis of the claim made by the appellant and with the merits of that claim.  Some aspects, including, for example, the appellant’s having taken orders as a Buddhist monk were accepted; others, particularly relating to duration of residency at particular locales, were not.  The learned federal magistrate, at para 16 of his Honour’s reasons for judgment, observed, again correctly, that:

   A rejection of a party’s evidence and contingence is not, without more, a denial of natural justice.

8. There was nothing illogical or irrational about the bases upon which the Tribunal member chose not to accept particular aspects of the appellant’s claim.  It is, on judicial review, a necessary discipline for a court not to descend into the factual merits of a decision under review but, instead, to focus upon whether that decision is attended, in the way alleged, with jurisdictional error.  To do otherwise is, as Brennan J observed in Attorney-General (NSW) v Quin (1990) 170 CLR 542, to remove legitimacy of judicial review. The learned federal magistrate observed that necessary discipline. It is no less incumbent for this Court, in the exercise of appellate jurisdiction in respect of the Federal Magistrates Court, to observe that same discipline.

9. The Tribunal was obliged to exercise, fairly, its core function of reviewing a-fresh and on the merits, the decision concerning the visa application: see Minister for Immigration and Citizenship v Li [2013] HCA 18. The Federal Magistrates Court correctly concluded, by reference to the grounds of review before it, that this core function had been discharged without jurisdictional error in this case.

10. None of this is to say that there are not, in the appellant’s written submissions, filed in Court today, bases upon which it can be seen that, were the case to be remitted to the Tribunal, that the remission would not be futile.  Plainly, there are factual matters which the appellant wishes either to agitate or reagitate, so as to negate what he, I accept, genuinely sees as confusion on the part of the Tribunal.  Such a remitter to the Tribunal can only occur in the event that the appeal to this Court has merit.  For the reasons given, it does not.  The appeal must be dismissed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:       23 May 2013