SZJHE v Minister for Immigration & Citizenship

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 26 November 2008
• Neutral Citation: [2008] FCA 1771

FEDERAL COURT OF AUSTRALIA

SZJHE v Minister for Immigration & Citizenship [2008] FCA 1771

MIGRATION – review sought of Tribunal’s decision – no error alleged against decision of Federal Magistrate – appeal dismissed – impermissible merits review – bad faith – application dismissed

Haritopoulos Pty Ltd v Deputy Commissioner of Taxation [2007] FCA 394, 66 ATR 225 followed

NAAG of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713, 195 ALR 207 followed

NAKF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 730, 130 FCR 210 followed

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 applied

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1, 168 ALR 407 applied

SAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 547 distinguished

Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210 applied

SBAN v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 591 distinguished

SBAP v Refugee Review Tribunal [2002] FCA 590 followed

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361, 194 ALR 749 followed

SCAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 397 followed

SZHAH v Minister for Immigration & Multicultural Affairs [2006] FCA 1012 followed

SZJHE v Minister for Immigration [2008] FMCA 1299 cited

SZJVA v Minister for Immigration & Citizenship [2008] FCA 1631 followed

SZLZM v Minister for Immigration & Citizenship [2008] FCA 1263 followed

SZJHE v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 1565 of 2008

FLICK J

26 NOVEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1565 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	FLICK J
DATE OF ORDER:	26 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE ORDERS OF THE COURT ARE:

1. The Notice of Appeal as filed on 3 October 2008 is dismissed.

2. The Appellant is to 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	NSD 1565 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	FLICK J
DATE:	26 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The present Appellant claims to be a citizen of India and arrived in Australia on 14 February 2006.

2 He applied to the Department of Immigration and Multicultural and Indigenous Affairs for a Protection (Class XA) visa on 23 March 2006. On 15 May 2006 a delegate refused to grant the application and the Refugee Review Tribunal affirmed the delegate’s decision on 31 July 2006. The Federal Magistrates Court set aside the delegate’s decision on 17 July 2007 and remitted the matter to the Tribunal to be determined according to law.

3 A differently constituted Tribunal affirmed the delegate’s decision on 30 November 2007. The Tribunal “did not find the applicant to be credible on some key aspects of his claims”. Instances were provided “of the inconsistencies, contradictions and implausibility that lead the Tribunal to conclude that the applicant is not a reliable witness in relation to certain aspects of his claims”. On 19 August 2008 the Federal Magistrates Court dismissed an application for review: SZJHE v Minister for Immigration [2008] FMCA 1299.

4 The Appellant now appeals to this Court. He appeared unrepresented during the course of the hearing on 24 November 2008, although he did have the benefit of an interpreter. He had also filed on 19 November 2008 a written Outline of Submissions.

5 The Grounds of Appeal to this Court (without alteration) are expressed as follows:

1. The Refugee Review Tribunal failed to establish a connection between my claim of persecution and the country information about the LTTE under the Migration Act:

Particulars

A. The Tribunal failed to establish a connection between my claim of persecution and the country information about the LTTE under the Migration Act that:

i) the authority of India treated the LTTE as a terrorist organization and the members and supporters of this organization are the enemy of the nation. They were in the government’s wanted list.

1. The Refugee Review Tribunal made the decision in bad faith:

Particulars

A. The Tribunal made the decision in bad faith by making the following comment that:

i) the Tribunal did not find the applicant to be credible on some key aspects of his claims; and

ii) the Tribunal did not accept that the applicant was of adverse interest to the Indian authorities.

2. The decision of the Refugee Review Tribunal did not give any weight to the response that I lodged under s424A of the Migration Act:

Particulars

A. The Tribunal asked me to provide a response for couples of things and I promptly response of those things that the Tribunal came into my attention. However the Tribunal did not give any weight to those documents and just came into conclusion whatever had to its mind.

These Grounds of Appeal are a substantial repetition of the grounds as advanced before the Federal Magistrates Court. The Appellant’s written submissions also substantially repeat that which is otherwise set forth in the Grounds of Appeal.

6 The purported “Grounds”, it may be noted, only direct attention to perceived deficiencies in the decision of the Tribunal. No ground is directed to any appellable error alleged to have been made by the Federal Magistrates Court.

7 The appeal should be dismissed on that basis alone. Such a fundamental deficiency in a notice of appeal is not a mere matter of form; no original jurisdiction is vested in this Court to review errors perceived to have been committed by the Tribunal: SZLZM v Minister for Immigration & Citizenship [2008] FCA 1263. In Sathiyanathan v Minister for Immigration & Multicultural Affairs [2000] FCA 210, Finn, Marshall and Goldberg JJ likewise emphasised the appellate role of this Court. Their Honours were there addressing an appeal which did at least allege error on the part of the Federal Magistrate, but they did go on to make the following observations as to attempts to review in this Court the reasons of the Tribunal:

[10] We granted leave at the commencement of the hearing to amend the grounds of appeal better to reflect the written submissions the appellant had filed in the appeal. The two errors now ascribed [to] her Honour’s decision are that she failed to find (i) that the Tribunal did not address whether by reason of all of the claims made by the appellant, including those relating to events prior to 1997, the appellant had a well-founded fear of persecution for a Convention reason; and (ii) that the Tribunal erred in asking whether all Tamils would have such a well-founded fear. We should state at the outset that we do not consider there is substance in either ground. We would add that much of the appellant’s submissions were directed to the proposition that the Tribunal had made errors in the way it had considered the evidence and issues before it. Although this occurred under the rubric of a consideration of the primary judge’s reasons it was of little assistance in understanding why it was said that the primary judge fell into error. The Court wishes to emphasise that an appeal to the Full Court in a refugee matter should not be taken as an occasion to re-consider the Tribunal’s reasons as distinct from considering the primary judge’s reasons.

8 Even if the Notice of Appeal had been construed as a contention that the Federal Magistrates Court erred in not concluding that the Tribunal had committed one or other of the errors alleged, the appeal still would have been dismissed.

9 Any failure on the part of the Tribunal to “establish a connection” between the claim of persecution and the country information is essentially either a challenge to the factual conclusions as made by the Tribunal or a challenge to its reasoning process. On either basis, no jurisdictional error is established by any such failure.

10 The Tribunal addressed the claim as made by the now Appellant as to the LTTE and made a finding against him. The claim as expressed in the original application made to the Department stated in part as follows (without alteration):

In middle of October 2005, my Sri Lankan business contact had been arrested by the Sri Lankan Police on a tip off given by the Customs officers in Colombo by suspecting that the goods might send to LTTE. Same day my Colombo business friend’s brother telephoned me to my office at Chennai and related to me how his brother was arrested by the police in Colombo. He said that the police arrested his brother as they have found that the material I exported to him to make uniforms for LTTE and the medicine were used by the LTTE to treat their cadres who injured due to armed attacks on Sri Lankan Defence Forces. The person who telephoned said that I should be careful because the Tamil Nadu Police might come to question me over the supplies. According to what I heard the officers who had opened some of...