SZIAI v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Court: Federal Court (Australia)
• Judgment Date: 08 September 2008
• Neutral Citation: [2008] FCA 1372

FEDERAL COURT OF AUSTRALIA

SZIAI v Minister for Immigration and Citizenship [2008] FCA 1372

MIGRATION – application to raise ground of appeal abandoned below – jurisdiction or discretion – role of appellate court to correct error – public law – need for timely decisions – certificates filed by Appellant – inquiry initiated by Tribunal unearthed opposing evidence – certificates said to be “fake & forged” – further inquiry required – appeal allowed

Federal Court of Australia Act 1976 (Cth), s 24(1)(d)

Migration Act 1958 (Cth), ss 91R(3), 422B, 427(1)(d), 476A

Bunnag v Minister for Immigration and Citizenship [2008] FCA 357 followed

C A Henschke & Co v Rosemount Estates Pty Ltd [2000] FCA 1539, 52 IPR 42 considered

Coulton v Holcombe (1986) 162 CLR 1 followed

Foxtel Management Pty Ltd v Australian Competition and Consumer Commission [2000] FCA 589, 173 ALR 362 followed

Gomez v Minister for Immigration and Multicultural Affairs [2002] FCAFC 105, 190 ALR 543 followed

Iyer v Minister for Immigration and Multicultural Affairs [2001] FCA 929, 192 ALR 71 considered

Li v Minister for Immigration and Citizenship [2007] FCA 1098, 96 ALD 361 followed

Luu v Minister for Immigration and Multicultural Affairs [2002] FCAFC 369, 127 FCR 24 considered

Luu v Renevier (1989) 91 ALR 39 followed

Metwally v University of Wollongong (1985) 59 ALJR 481 followed

Minister for Immigration and Citizenship v Le [2007] FCA 1318, 164 FCR 151 followed

Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32, 207 ALR 12 followed

Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 considered

NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195, 93 ALD 333 followed

Ngaronoa v Minister for Immigration and Citizenship [2007] FCAFC 196, 244 ALR 119 followed

Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 followed

Singh v Minister for Immigration and Ethnic Affairs (1985) 9 ALN N13 considered

SZIAI v Minister for Immigration [2008] FMCA 788 cited

SZITU v Minister for Immigration & Citizenship [2008] FCA 758 followed

SZJBA v Minister for Immigration and Citizenship [2007] FCA 1592, 164 FCR 14 followed

SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105, 102 ALD 226 followed

SZKMS v Minister for Immigration and Citizenship [2008] FCA 499 followed

Tickner v Bropho (1993) 40 FCR 183 followed

WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 followed

Wecker v Secretary, Department of Education Science & Training [2008] FCAFC 108 followed

McMillan J, Recent Themes in Judicial Review of Federal Executive Action (1996) 24 FL Rev 347

Taylor S, Informational Deficiencies Affecting Refugee Status Determination: Sources and Solutions (1994) 13 U Tas LR 43

SZIAI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 1024 of 2008

FLICK J

8 SEPTEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	NSD 1024 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIAI Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	8 SEPTEMBER 2008
WHERE MADE:	sydney

THE ORDERS OF THE COURT ARE:

1. The appeal be allowed.

2. The orders of Scarlett FM in the Federal Magistrates Court of Australia on 18 June 2008 be set aside.

3. An order in the nature of a writ of certiorari quashing the decision of the Second Respondent.

4. An order in the nature of a writ of prohibition prohibiting the First Respondent from acting upon, giving effect to, or proceeding further on the basis of the decision of the Second Respondent.

5. The matter be remitted to the Second Respondent to be determined according to law.

6. The First Respondent is to pay the Appellant’s costs of the proceeding before Scarlett FM and of this appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	NSD 1024 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIAI Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FLICK J
DATE:	8 SEPTEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The Appellant is a citizen of Bangladesh who arrived in Australia on 27 May 2005.

2 He applied for a Protection (Class XA) Visa on 22 June 2005. In a statement dated 21 June 2005 the Appellant set forth that he was born into a Sunni Muslim family but converted to Ahmadiyya Muslim Jamaat on 1 January 2000. He went on to state that as he had “changed my religion faith, I am now disowned by family and close relatives”. The claim for the visa was refused on 18 August 2005.

3 There thereafter followed two hearings before the Refugee Review Tribunal, each of which was set aside by the Federal Magistrates Court. The decision of the Tribunal which was the subject of review by the Federal Magistrates Court now under appeal is that handed down on 19 February 2008. That decision affirmed the decision of the Minister’s delegate not to grant a protection visa. The Federal Magistrates Court dismissed the application made to that Court: SZIAI v Minister for Immigration [2008] FMCA 788.

4 The Notice of Appeal as filed in this Court raises four Grounds of Appeal, being contentions that the learned Federal Magistrate:

(i) erred by failing to find that the Tribunal committed jurisdictional error in failing to take into account delays and/or the number of occasions on which the now Appellant was required to give evidence, caused by the number of occasions upon which the claim was remitted to the Tribunal, in making credibility findings based on alleged inconsistencies at different hearings;

(ii) further erred in finding that the Tribunal had provided a fair proceeding for the now Appellant when relying on evidence from a third-party questioning the authenticity of documents relied on by the Appellant to corroborate his claim to be a member of Ahmadiyya Muslim Jamaat;

(iii) further erred in finding that the Tribunal’s decision was “not unreasonable”, in circumstances where the decision was affected by apprehended bias;

(iv) further erred in finding that the decision of the Tribunal was a privative clause decision, in circumstances where the Tribunal failed to comply with the requirements of ss 424A and 424AA of the Migration Act 1958 (Cth).

In addition to these Grounds, the Appellant now seeks leave to amend the existing Notice of Appeal to raise an additional ground, namely:

(v) a contravention of s 91R(3) of the Migration Act 1958 (Cth).

5 When the appeal was called on for hearing, Counsel for the Appellant only sought to press the second and fifth Grounds. The remaining Grounds were abandoned.

6 Notwithstanding the terms in which the second Ground of Appeal is now expressed, it is understood that this Ground seeks to contend that the Tribunal should have made further inquiries and, in failing to make those further inquiries, there was a failure to make such inquiries as the Tribunal was authorised to make pursuant to s 427(1)(d) of the 1958 Act and that the decision of the Tribunal was unreasonable. This was an argument raised before the Federal Magistrates Court and resolved against the now Appellant.

7 The fifth Ground of Appeal was an argument raised before the Federal Magistrates Court by the form of Application as filed in that Court. The argument, however, was there abandoned by Counsel then appearing for the now Appellant.

Appellate Jurisdiction of This Court

8 In entertaining the current appeal, it is relevant to recall that this Court is exercising appellate jurisdiction, being the jurisdiction conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) to hear an appeal from a decision of the Federal Magistrates Court. This Court is not exercising the original jurisdiction conferred by the Commonwealth legislature upon the Federal Magistrates Court by s 476 of the 1958 Act. The original jurisdiction of this Court conferred by s 476A of the 1958 Act is — and is expressed to be — a “limited jurisdiction”. See: SZITU v Minister for Immigration & Citizenship [2008] FCA 758 at [32] per Greenwood J.

9 No argument was advanced, however, on behalf of the Respondent Minister denying the jurisdiction of this Court to entertain the fifth Ground sought to be advanced. The Respondent Minister’s position was that this Court should decline to entertain the fresh ground — not as a matter of jurisdiction — but rather as a matter of discretion. No Notice of Objection to the competency of the appeal had been filed. Counsel for the Respondent Minister submitted that leave to raise an argument as to non-compliance with s 91R(3) should be refused in circumstances where that was an argument raised for resolution before the Federal Magistrates Court, where the now Appellant was there represented by Counsel, and where (for whatever reason) Counsel then appearing for the now Appellant expressly abandoned reliance upon any alleged non-compliance.

10 In the absence of submissions being advanced which properly addressed the concerns as to jurisdiction, and where ultimately it is unnecessary to do so, the present appeal has not been resolved on the basis that this Court does not have jurisdiction to entertain the proposed further Ground of Appeal. If the issue had been pursued, it is considered that it should have been resolved not by a single Judge...