FEDERAL COURT OF AUSTRALIA

SZAQW v Minister for Immigration & Multicultural & Indigenous

Affairs [2004] FCA 635

MIGRATION – no issue of principle

SZAQW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 262 OF 2004

CONTI J

30 APRIL 2004

SYDNEY

THE COURT ORDERS THAT:

1.         Service of the respondent’s notice of motion dated 2 April 2004 be dispensed with.

2.         The amended notice of appeal (the ‘appeal’) filed on 1 April 2004 be dismissed.

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

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

REASONS FOR JUDGMENT

1                     This is an appeal from the judgment and orders of Federal Magistrate Barnes given and made on 13 February 2004, whereby his Honour dismissed the appellant’s application purportedly brought pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of the decision of the Refugee Review Tribunal (‘RRT’) made on 29 April 2003.  The RRT decision had affirmed the decision of the Minister’s delegate made on 15 May 2001 not to grant the appellant a protection visa.

2                     On 18 March 2004 the appeal was listed for directions.  On that occasion I informed the appellant that the purported ‘grounds’ of appeal set out in the notice of appeal filed in this Court on 1 March 2004 bore the hallmarks of a standard precedent drafted by a migration agent without regard to the findings appearing in the judgment of Barnes FM and disclosed no conceivable or viable grounds in law for setting aside his Honour’s decision.  I directed that the applicant file and serve an amended notice of appeal and set the matter down for further consideration on the 2 April 2004.  The appellant’s amended notice of appeal was filed in the Court’s registry on 1 April 2004, and at the directions hearing before me on the following day, the respondent presented a notice of motion seeking orders, inter alia,that the appellant’s amended notice of appeal be struck out for upon the basis that no viable basis or ground for the appeal was disclosed.  The motion was set down for hearing on 30 April 2004 and the respondent requested to file the same forthwith in the registry.

3                     At the subsequent hearing of the motion for strike out on 30 April 2004, the respondent Minister moved the Court for the following orders:

‘1.        Service of this Notice of Motion be dispensed with.

2.                  The Amended Notice of Appeal (the “Appeal”) served on the Respondent on 1 April 2004 be dismissed pursuant to Order 20 Rule 2(1)(a) of the Federal Court Rules, when read together with Order 54B(5) of the Federal Court Rules, because no reasonable basis for the Appeal is disclosed.

3.                  The Appellant pay the Respondent’s costs of and incidental to this motion and the proceedings.’

4                     The amended notice of appeal contained the following purported grounds (read literally):

‘1.        The single Judge of the Federal Magistrates Court of Australia in his Judgment delivered on the 13 February 2004 failed to find error of law, Jurisdictional error, Procedural fairness and relief Under Section 39B of the Judiciary Act 1903.

2.                  The grounds and relief is very much similar with the recent High Court Judgment – Muin v refugee review Tribunal, Lie v Refugee review Tribunal [2002] HCA 30 (8 August 2002).  Catchwords: Immigration – Refugee – Protection Visa – Decision by Minister to refuse application for visa – review of decision by Refugee review tribunal – Obligation of Secretary of department of Immigration and Multicultural Affairs to give relevant documents to Registrar for purpose of review – nature and extent of Obligation – Migration Act 1958(Cth), ss148(3), 424(1).

3.                  The Honorable trial judge erred in considering the real state of affairs of the applicant, the applicant feared harm.  And also the present ruling government fails to protect civilian life, which is a worldwide concern today.  Honorable Judge did not take it into consideration.

4.                  The applicant feared harm due to the persecution based on his political belief.  The applicant claims to be a member of Freedom Party.  Most of the members and leaders of that party are still in the custody waiting death sentence given by the pervious government.  There is no guarantee that this applicant would be given protection by the present government when it did not give protection to the other member of the same party.  The Honorable Judge did not consider this fact.

5.                  s 474 of Migration Act is ineffective as per the recent two decisions of the High court of Australia.  Honorable trial judge did not consider this in favour of me.

6.                  I will face persecution if I return to my country of origin, as there are significant levels of violation of human rights, this was not considered by honourable judge.

7.                  Recent High Court judgment: Plaintiff s157/2002 v Commonwealth of Australia [2003] HCA (14 February 2003).

8.                  Recent federal Court of Australia judgment: SGDB v Minister for immigration and Multicultrual and Indigenous Affairs [2003] FCA 74 (14 February 2003).’

5                     After the solicitor for the respondent addressed the court at length, on the footing of written submissions, and the appellant indicating he relied primarily on his written submissions, I dismissed the application with costs and indicated that I would publish my reasons.  Those reasons are now set out below. 

6                     It is clear that paragraphs 1, 2, 7 and 8 of the amended notice of appeal do not specify any viable grounds of review, but merely re-state the decision appealed from and refer to case law in general terms without in any way purporting to apply the same to any of the circumstances and matters set out in the reasons for judgment of Barnes FM below, or otherwise to explain the relevance of the same.  None of that material satisfies the requirements of Order 52 rule 13(2)(b) of the Federal Court Rules 1976 (Cth), which require an appellant to state ‘briefly, but specifically the grounds relied upon in support of the appeal’.

7                     Further, the general assertions, the subject of grounds 3, 4, 5 and 6 do not establish any viable basis for impugning any of the reasons for judgment below.  In short, as his Honour indicated, the RRT had found the appellant’s claims to have been fabricated, and that he was not a credible witness; thus his Honour concluded, and in my opinion correctly, as follows:

‘…the applicant failed because of the view that the Tribunal took of his credibility.  Credibility is a matter for the Tribunal par excellence (Re MIMIA; Ex parte Durairajasingham (2001) 68 ALR 407).  The findings that the Tribunal made were open to it on the material before it.  As the credibility findings were open to the Tribunal, no error is demonstrated in such conclusions (see Kopalipillai v MIMIA (1998) 86 FCR 547).  Mere errors in fact finding (if there were such errors) do not without more constitute jurisdictional error.  Moreover, the Tribunal cannot review the merits of the Tribunal decision (MIEA v Wu Shan Liang (1996) 185 CLR 259) and in so far as the applicant seeks merits review, it is not available in this court.’

8                     In the result of course, Driver FM held that no jurisdictional error had been established on the basis of the application made to the Court, and duly dismissed the same.  I agree with his Honour’s further expressed conclusion that the appellant submitted nothing whatsoever:

‘…to support the claim that the Tribunal made a jurisdictional error in failing to take into account any relevant considerations as alleged by the applicant or in any other way.’

9                     Prior to the hearing of the motion the appellant filed with the registry a form of ‘Applicant’s Amended Submissions’ of some nine pages, prepared by a person having an evidently confused and inadequate knowledge of migration law, and in any event having an entire absence of understanding of what may constitute viable grounds of appeal open to be presented in the context of refugee claims such as those here supposedly involved.  Thus the written submissions amounted to no more than a farrago of assertions as to the conduct of his review application to the RRT, together with a restatement of the case which he put or might have put to the delegate of the Minister and/or to the RRT, as though the function of the Federal Magistrate on an application for review, and of this Court on appeal from the Federal Magistrate, was to re-try the merits or otherwise the claims on his part to be a refugee.  Thereafter these written submissions contained a purported treatise as to what may constitute jurisdictional errors generally by a federal magistrate and subsequently by this court on appeal.  No realistic endeavour was made to apply the same in relation to any matters supposedly arising on this appeal. 

10                  In addition to those matters of unconnected assertions, the appellant’s written submissions complained of the late provision to the Minister of the ‘Green Book’, without an indication of what material he might already have held arising out of his proceedings undertaken before the delegate and subsequently the RRT.  There is no suggestion apparent from the reasons for judgment below that the appellant made any such complaints in the context of the federal magistrate’s proceedings.  On the contrary, it is readily apparent from those reasons that in the view of Barnes FM, the appellant’s claims, which the RRT found to be fabricated or spurious, were claims which led to his Honour’s contrivance of the circumstances leading to the appellant’s departure from Bangladesh.

11                  For those reasons I formed the view that the Minister’s motion for dismissal forthwith of the appeal proceedings, upon the footing that the notice of appeal has not propounded any grounds of appeal, was soundly conceived and that accordingly the appeal proceedings should be summarily dismissed (see Wilson v Hollywood Toys (Australia) Pty Ltd (1996) 68 FCR 84 and Funaki v Minister for Immigration and Multicultural Affairs [2000] 1698).

Associate:

Dated:              20 May 2004