FEDERAL COURT OF AUSTRALIA

SZEOX v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 672

MIGRATION – no special circumstances

SZEOX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

NSD 2644 OF 2005

CONTI J

6 JUNE 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondents costs of the appeal inclusive of any reserved 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                     This is an appeal against the judgment of Federal Magistrate Lloyd-Jones given on 16 December 2005, which dismissed an application for judicial review of the decision of the Refugee Review Tribunal ("the Tribunal") handed down on 21 September 2004. The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant a protection visa to the appellant, which decision was made on 3 May 2001.

2                     The appellant is a citizen of Bangladesh. Before the Tribunal the appellant claimed to fear persecution upon the basis that he was an active member and office holder of the Freedom Party, and was blamed for the murder of an Awami League leader. He further claimed that because of his political activities he was attacked by political opponents who tried to kill him and left him with severe injuries.

3                     The Tribunal found that the appellant was not a credible witness and that his evidence was vague, generalised and inconsistent, and further that documentary evidence provided by the appellant was not genuine. The Tribunal also found that the Freedom Party was largely inactive, and further that if the appellant resumed his membership of that party on his return, it would be ‘most unlikely’ that he would face any risk of persecution.

4                     Before the Federal Magistrates Court, the appellant claimed that the Tribunal acted in bad faith and/or was biased, had failed to investigate the appellant’s claims, had denied the appellant natural justice and had made factual findings that were wrong. The appellant also claimed that the Tribunal’s comments (in its decision) were not based upon reasoning which had a rational or logical foundation.

5                     The Federal Magistrate found the appellant’s claims could not be sustained because there was no evidence of bad faith or actual bias on the part of the Tribunal nor was there anything on the face of the decision which gave rise to an apprehension of bias. His Honour further found that no error had been demonstrated, nor had arisen from the procedures adopted by the Tribunal or by any action it took in its decision-making process. His Honour pointed out that merits review of the factual findings of Tribunal formed no part of the function of the Court in dealing with an application for judicial review and that there was no positive duty imposed upon the Tribunal to investigate an applicant’s claim. The Federal Magistrate further found in any event that there was nothing on the face of the Tribunal’s decision to suggest an illogicality nor lack of foundation to its findings, and that there was nothing to enliven an obligation on the part of the Tribunal to give particulars pursuant to s 424A(1) of the Migration Act 1958 (Cth) (“the Act”) having regard to the principles established in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24.

6                     The notice of appeal filed by the appellant on 30 December 2005 claimed in summary that the Federal Magistrate failed to determine whether there was jurisdictional error in the decision of the Tribunal, and had erred in determining that the Tribunal had not breached s 424A of the Act. The appellant also stated on the notice of appeal that “I will provide more details later”.

7                     During the hearing for this matter on 24 May 2005, counsel for the appellant requested that I stand down for a time during the day so that he could spend time in discussion with his client. Later on that day, counsel for the appellant informed the Court that he had given certain advice to the appellant which the appellant had declined to accept, and that therefore he was obliged to terminate his retainer. I thereupon stood over the proceedings for seven days.

8                     When the hearing recommenced on 31 May 2006 the appellant represented himself with the assistance of an interpreter. His submission comprised simply the assertion in effect that the Tribunal’s decision was erroneous, and that the matter should be returned to the Tribunal for a fresh hearing.

9                     In the circumstances I made the inevitable orders that the appeal be dismissed with costs.

Associate:

Dated: 6 June 2006