SZLZM v Minister for Immigration & Citizenship

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judgment Date: 18 August 2008
• Neutral Citation: [2008] FCA 1263

FEDERAL COURT OF AUSTRALIA

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

MIGRATION – appeal from Federal Magistrates Court – Notice of Appeal identifies no error of Federal Magistrate – Notice of Appeal only raises errors committed by Refugee Review Tribunal – appeal dismissed

Federal Court of Australia Act 1976 (Cth)

Migration Act 1958 (Cth), ss 476, 476A

Assad v Minister for Immigration & Citizenship [2008] FCA 1039 considered

La Bara v Minister for Immigration & Citizenship [2008] FCA 785 considered

MZXOT v Minister for Immigration & Citizenship [2008] HCA 28 followed

Shuster v Minister for Immigration and Citizenship [2008] FCA 215, 167 FCR 186 considered

SZLZM v Minister for Immigration & Citizenship [2008] FMCA 887 cited

SZIBR v Minister for Immigration & Citizenship [2008] FCA 502 followed

Thang Gia Uy Vo v Minister for Immigration & Citizenship [2007] FCA 1599, 101 ALD 57 considered

VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 followed

SZLZM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 1026 of 2008

FLICK J

18 AUGUST 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	NSD 1026 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	FLICK J
DATE OF ORDER:	18 AUGUST 2008
WHERE MADE:	SYDNEY

THE ORDERS OF THE COURT ARE:

1. The appeal be dismissed.

2. The Appellant 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.

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY	NSD 1026 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	FLICK J
DATE:	18 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The Appellant in this proceeding is a citizen of China and was born in 1970.

2 He arrived in Australia on 25 March 2006 on a false Japanese passport and applied to the then Minister for Immigration and Multicultural Affairs for a Protection (Class XA) Visa on 8 May 2006. A delegate of the Minister refused to grant the visa on 21 July 2006 and he applied to the Refugee Review Tribunal for review on 17 August 2006.

3 The Tribunal affirmed the delegate’s decision by way of a decision signed on 10 January 2008. On 18 June 2008 the Federal Magistrates Court dismissed an application seeking to review the decision of the Tribunal: SZLZM v Minister for Immigration & Citizenship [2008] FMCA 887.

4 The Appellant now appeals to this Court. He appeared today unrepresented, albeit with the benefit of an interpreter. He read to the Court (via his interpreter) a detailed statement in support of his appeal. That statement fully addressed the issues sought to be canvassed. Although he maintained that a copy of the Respondent Minister’s submissions had only been received by him on 13 August 2008, he accepted that his statement made orally today fully set forth his case. Any further opportunity to respond would be for the purpose of reducing to writing the statement made orally. Such a further opportunity was not considered necessary. The interpreter experienced no difficulty in translating the Appellant’s oral contentions.

5 Although the present proceeding is an appeal from the decision of the Federal Magistrates Court, the Grounds of Appeal as filed in this Court do not attempt to identify any error made by the learned Federal Magistrate. Those Grounds merely set forth the errors alleged to have been committed by the Tribunal.

6 This deficiency in the Notice of Appeal is not a mere matter of form.

7 Division 2 of Part 8 of the Migration Act 1958 (Cth) provides for the manner in which decisions may be reviewed by the Federal Magistrates Court, the Federal Court and the High Court. Section 476 provides for the jurisdiction of the Federal Magistrates Court. Section 476(2)(a) and (d), it has recently been held, are not invalid because they oblige the High Court to exercise exclusively and without remitter the jurisdiction conferred by s 75(v) of the Constitution with respect to certain decisions of the Minister: MZXOT v Minister for Immigration & Citizenship [2008] HCA 28. Section 476A provides for the limited original jurisdiction to be entertained by this Court: eg, Assad v Minister for Immigration & Citizenship [2008] FCA 1039; La Bara v Minister for Immigration & Citizenship [2008] FCA 785 at [3]; Shuster v Minister for Immigration and Citizenship [2008] FCA 215 at [6]–[7], 167 FCR 186 at 188. The appellate jurisdiction of this Court is relevantly that conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). That appellate jurisdiction may be exercised by a single Judge of this Court: s 25(1AA)(a).

8 The jurisdiction expressly vested by the legislature upon the Federal Magistrates Court cannot be exercised by this Court; this Court simply does not have vested in it the jurisdiction conferred by s 476 upon the Federal Magistrates Court. This Court only has the limited original jurisdiction conferred by s 476A of the 1958 Act and, relevantly, the appellate jurisdiction thereafter conferred by s 24(1)(d) of the 1976 Act to entertain an appeal from the Federal Magistrates Court.

9 The Notice of Appeal identifies no error committed by the Federal Magistrates Court and may be dismissed for that reason. The appellate jurisdiction of this Court should not be exercised so as to permit an applicant a second opportunity to impugn a decision of the Tribunal. No such original jurisdiction is conferred upon this Court.

10 Notwithstanding the deficiency in the content of the Notice of Appeal, it nevertheless remains clear that the Appellant sought to invoke the appellate jurisdiction of this Court and not its original jurisdiction. Whatever other deficiencies there may be in his Notice of Appeal, that Notice does state (without alteration) that “the appellant appeals from the whole of the judgment of the Federal Magistrate Court given on 18.6.2008 at Sydney”. In some circumstances, it may be accepted, it is not appropriate for this Court to deal with an application before it solely upon the basis of “procedural errors committed by an unrepresented applicant”: eg, Thang Gia Uy Vo v Minister for Immigration & Citizenship [2007] FCA 1599 at [12], 101 ALD 57 at 59.

11 In the present appeal no submission was advanced on behalf of the Respondent Minister that the appeal should be dismissed by reason of the failure of the Appellant to identify any error alleged to have been committed by the learned Federal Magistrate; indeed, the Minister’s written submissions addressed the substance of each of the three purported Grounds of Appeal.

12 But, even if the Grounds of Appeal be construed as an identification of the errors which were said to have been committed by the Tribunal, and an implicit contention that the Federal Magistrate erred in not concluding that there were such errors, no different conclusion — it should be noted — would have been reached and the appeal would have been dismissed.

13 The first purported Ground of Appeal, as it is expressed in the Notice of Appeal, states as follows:

The Refugee Review Tribunal has erred in laws during the course of review of my application for protection visa. The Tribunal re-enacted the so called “the applicant’s movements from his arrival in Tokyo”. The Tribunal has abused it power to take this course of action during the hearing because it had added chaotic confusion to me. It also did not take into consideration of my nervousness during the hearing. I had told the tribunal many times during the hearing that I did not know Japanese, yet the tribunal still “re-enacted” and then, it concluded that I did not contradict the details of the reenactment – Last paragraph on page 189 of the green book – Annexure A

The substance of this Ground is understood to be a contention that the manner in which the Tribunal proceeded caused the now Appellant to become confused and a contention that the Tribunal failed to take into account the effect that had upon him, including his “nervousness”.

14 This Ground should be rejected. It was (most probably) not raised before the Federal Magistrates Court and no reason has been exposed as to why it should now be entertained. In those circumstances where this Court has a discretion to permit a new ground to be raised on appeal, there should generally be an adequate explanation for not raising the ground before the Federal Magistrates Court (SZIBR v Minister for Immigration & Citizenship [2008] FCA 502 at [38]–[41]) and leave should only be granted if it is expedient in the interests of justice to do so (VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46]–[48]).

15 The Ground could potentially have been cast in terms of a contention that the Tribunal denied the Appellant procedural fairness. But, even if the Ground were to be so construed, there is no evidence to support such a contention. The only relevant evidence before the Federal Magistrates Court and this Court are the reasons for decision of the Tribunal. There was, for example, no transcript of the proceedings before the Tribunal; nor any other evidence to support the Ground.

16 The uncertainty as to whether or not this Ground was in fact raised before the Federal Magistrates Court is...