FEDERAL COURT OF AUSTRALIA

SZDZH v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1533

Migration Act 1958 (Cth) ss 424A, 425, 427

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

Re Minister for Immigration and Multicultural Affairs & Anor; ex parte Abebe [1999] 197 CLR 510;

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 [2003] 211 CLR 411

Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Cassim (2000) 175 ALR 209

SZDZH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD930 OF 2005

BENNETT J

12 OCTOBER 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

            (1)        The appeal be dismissed.

            (2)        The appellant pay the first respondent’s costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The appellant is a citizen of Nepal who claims fear of persecution based on his political opinion, stemming from having been a member of the Maoist Party in Nepal.  The factual matters upon which he relied and to which the Tribunal referred in its decision are set out in the appellant’s statutory declaration and written submissions, which were forwarded to the Tribunal.

2                     The Tribunal did not find the appellant’s claims plausible or credible.  The Tribunal did not believe that he had been a member of the Maoist Party or that he was involved in the activities of this party as he claimed.

3                     The Tribunal decision on the appellant’s application for a protection visa was made on 30 June 2002 and handed down on 24 July 2002.  The appellant then filed an application for review to the Federal Magistrates Court in August 2002 but subsequently discontinued that application.  He then filed in the High Court later that year.  The proceeding was remitted to the Federal Court of Australia on 7 February 2003 and on 22 August of that year, Selway J dismissed the application for failure to comply with orders of the Court.

4                     The present appeal arises from an application for judicial review filed in the Federal Magistrates Court on 2 July 2004.  The Minister filed a notice of objection to competency based upon the fact that the application was filed out of time.  Federal Magistrate Nicholls found that the Tribunal’s decision was a privative clause decision and consequently held that he had no jurisdiction.

5                     This is an appeal from the decision of Nicholls FM, commenced by a notice of appeal filed on 9 June 2005.  The grounds of appeal expressed in extreme terms with respect to the Federal Magistrate’s conduct of the hearing.  It is quite unfortunate that the grounds have been couched in those terms and Mr Jayawardena who appears for the appellant does not rely upon them.  Apart from expressing a concern as to the language used I will not take that matter further.

6                     There has been no application for leave to appeal and I note that the Federal Magistrate did undertake a detailed consideration of the Tribunal’s decision.  The parties have agreed that the matter should proceed so that this Court will consider the merits of the appeal and no point is taken whether or not the proper procedures have been complied with.

7                     The appellant relies upon the matters set out in an outline of written submissions that were forwarded to the court after the time that was directed for such filing and also after the written submissions of the respondent were filed.  Ms Rayment who appears for the Minister does not take issue with that.  It is agreed that I should treat the outline of submissions as providing the grounds of the appeal.  I note that there were a number of procedural matters that were dealt with by Federal Magistrate Nicholls.  Some of those were referred to in the notice of appeal but are not presently part of the grounds of appeal and I shall not consider them further.  Fundamentally, the appeal is based upon the findings of the Tribunal and an asserted error on the part of the Federal Magistrate in failing to find jurisdictional error by the Tribunal.

8                     In its decision the Tribunal sets out a number of factual matters including matters that had been submitted to it by the appellant’s solicitors by letter after the hearing.  I note that the solicitors appreciated that a major concern of the Tribunal was the appellant’s credibility.  The letter to the Tribunal specifically refers to that matter and then provides some pages of detailed material for the Tribunal to take into account in assessing that aspect of the claim.

9                     The Tribunal’s conclusion was quite clear and that matter has been recognised by Mr Jayawardena.  The Tribunal simply did not accept the appellant's claim that he had joined the Maoists and had become actively involved with them.  The Tribunal found the appellant:

‘[Not] to be credible and finds that [the appellant] did not join the Maoists as he has claimed, that he was not an ordinary member or any other kind of member of the Maoists and was not involved in the activities he claimed.’

(It is accepted that there was a typographical error in the Tribunal’s decision, so that this represents the Tribunal’s conclusion.)  The Tribunal gave reasons for finding the claim implausible.

10                  Accordingly, the Tribunal said that it was ‘satisfied that [the appellant] does not face a real chance of serious harm from the Nepalese authorities for reasons of his political opinion, actual or imputed or for any other Convention reason.’  It followed that the appellant was found not to face a real chance of harm on return to Nepal.

11                  The grounds of appeal can be characterised as follows:

(i)        That the Tribunal did not treat the appellant’s evidence reasonably and did not accept it

12                  This ground amounts to merits review and does not form a basis for jurisdictional error.  The Tribunal set out in some detail its reasons for the fact that it did not accept the appellant’s claims.

(ii)       That there was an obligation on the part of the Tribunal to make its own inquiries as part of an obligation to accord procedural fairness

13                  The Tribunal has no such obligation.  It is well accepted that while s 427 of the Migration Act 1958 (Cth) grants the Tribunal powers to make an investigation, this does not give rise as of course to any mandatory investigation; Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Cassim (2000) 175 ALR 209 at [13].  It is for the appellant to present to the Tribunal material necessary for the Tribunal to achieve the requisite satisfaction (Re Minister for Immigration and Multicultural Affairs & Anor; ex parte Abebe [1999] 197 CLR 510; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 [2003] 211 CLR 411).

(iii)      That there was a failure to comply with section 424A(1)

14                  That was said to be on the basis that the Tribunal did not put to the appellant that it did not believe him.  That ground clearly cannot be made out. First, the matters upon which the Tribunal relied in coming to its decision were matters that had been given to it by the appellant for the purpose of the application and so fell within the exception of s 424A(3)(b).  Secondly, the matters to which Mr Jayawardena referred were matters that clearly formed part of the reasoning process of the Tribunal and were not matters of information within s 424A(1). 

15                  In any event, it is quite apparent, not least from the response of the solicitors to which I have referred, that the Tribunal’s concern as to the credibility of the appellant and the fact that that matter was obviously an important part of the Tribunal’s decision had clearly been put to the appellant and, indeed, his solicitors had responded to it in some detail in their letter.

(iv)       That the Tribunal failed to consider the appellant’s claim

16                  I can see no matter that suggests that there was a failure to consider the claim.  As Mr Jayawardena conceded, the claim was based upon the appellant’s asserted membership of the Maoists and that clearly was considered in some detail by the Tribunal.

17                  As was pointed out by Ms Rayment, if the Tribunal is not satisfied that the appellant has a fear of persecution for a Convention ground, then the Tribunal must refuse the application for review and affirm the delegate’s decision.  There is no requirement on the part of the Tribunal to make a positive finding of disbelief, although in this case it did in fact do so (Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73).

18                  The remaining matters set out in the appellant’s outline of submissions really deal with a complaint as to the findings on credibility, for example an assertion that:

‘The Tribunal has adopted a very harsh yardstick to assail the applicant's credibility, without any information at all.’

19                  Certainly there was information upon which the Tribunal relied.  The fact that the Tribunal adopted a harsh yardstick is really a complaint about the Tribunal’s finding on credibility, despite the detailed submissions put to the Tribunal seeking to persuade it to the contrary.

20                  A further matter raised was a finding of relocation.  There was no such positive finding on the part of the Tribunal.  The Tribunal simply said that, as a matter of logic, if it found that the appellant was not at risk of harm, then it followed that he did not face a chance of harm if he returned to Nepal.  The submissions did make a reference to relocation to the Punjab but that was conceded by Mr Jayawardena to be an error.

21                  In view of the Tribunal’s clear findings as to the appellant’s credibility, significant difficulties were raised for Mr Jayawardena in mounting an argument that the Tribunal was in error.  No such error has been established.  It follows that the decision of the Federal Magistrate was inevitable and that, in the absence of jurisdictional error, the Tribunal decision was a privative clause decision and his Honour had no jurisdiction to hear it.  It follows that the appeal would inevitably be unsuccessful and accordingly the appeal must be dismissed with costs.

Associate:

Dated:              12 October 2005