FEDERAL COURT OF AUSTRALIA

SZJXX v Minister for Immigration and Citizenship [2007] FCA 1948

SZJXX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1526 OF 2007

FLICK J

15 NOVEMBER 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The Appellant is to pay the costs of the First Respondent fixed at $2500.

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 decision of the Federal Magistrates Court given on 20 July 2007.  That Court dismissed an Application seeking to review a decision of the Refugee Review Tribunal handed down on 5 December 2006 affirming a decision of a delegate of the Minister not to grant the Appellant a Protection (Class XA) visa. 

2                     The Federal Magistrate recorded in his reasons for decision the “considerable litigation history” of the matter.  That history need not now be repeated save for the fact that the decision of the Tribunal, now sought to be reviewed, was the third occasion upon which the Tribunal had heard the Application.  On each occasion the Tribunal was differently constituted. 

Grounds of appeal

3                     For present purposes it is sufficient to set forth the grounds of appeal as listed in the Notice of Appeal, namely:

[1]. The Federal Magistrate failed to follow the law of procedural fairness, breached the rules of applicable law and made jurisdictional error and error of law.

[2]. The Federal Magistrate also failed to identify the errors made by the Refugee Review Tribunal in connection with the making of the decision.

[3]. Making of the decision by the Federal Magistrate was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to [sic].

There is a total lack of particularity as to the manner in which the Appellant seeks to advance any of these contentions.  He is however an unrepresented party and an attempt has been made to give content to each of the grounds that the Appellant seeks to ventilate in this Court. 

4                     At the commencement of the hearing of this appeal the Appellant provided written submissions, dated 15 November 2007.  Those written submissions relevantly set forth the following:

7. I did not get opportunity to discuss my knowledge of Awami League. Instead RRT relied on my evidence before previous Tribunal:  See page 112, Tribunal noted ……….. with the Second Tribunal asked to provide details Awami League’s history etc.

8. Transcript of hearing is after page 10, before page 11.  Questions about Awami League are at page 13 and 14 of transcript.  Questions were about how I answered questions before the previous Tribunal.  Previous Tribunal had accepted that I was a member of the Awami League.  Third Tribunal did not accept anything. 

9. So Federal Magistrate was not right in saying that I know I had to prove I was an Awami League member.  So High Court decision in SZBEL does apply to my case.  As far as third Tribunal concerned, issue was whether my membership of Awami League was true.  How was I supposed to know this, given decision of second Tribunal?

The transcript to which reference is made in those written submissions is in the appeal book and the First Respondent had no opposition to those submissions now being advanced. 

5                     It is considered that none of the grounds of appeal should prevail and that the appeal should be dismissed.

The first ground: Procedural fairness

6                     It is difficult to give content to the first ground of appeal other than by reference to the written submissions filed today.  The page references to which those submissions refer provide in part as follows:

The Interpreter:  Because if I am interested and if I am involved with Awami League then I will be killed.  I will be murdered because to save my own life I have left my country and I am living here.

Mr Jacovides:   I mean here.  Why aren’t you involved with the Awami League here?  Do you know there is an Awami League here?

The Interpreter:  No, I don’t know. 

Mr Jacovides:  Is there any reason why you don’t know?

The Interpreter:  No.  I don’t want to know because when I am doing politics and involved with Awami League there is a harm in my life and they will threaten my life.  That’s why I won’t give an interest. 

The transcript of the proceedings before the Tribunal as constituted on the third occasion proceeded as follows:

Mr Jacovides:   When you spoke to the second Tribunal the man earlier this year, he discussed with you the history of the Awami League and its leadership and its goals and aims.  It seems to me that you didn’t have a lot of information about the Awami League considering you claimed to be one of its activists.  Why is that?

The Interpreter:   It’s like you mean that I am not very deeply involved with Awami League. 

Mr Jacovides:   No.  I mean your knowledge of the Awami League was quite sketchy.  You seem to not know exactly what the aims of the party were or you’ve said it was established in 1972 which is 30 years wrong.  It just seemed to me that for a person claiming to be an activist I thought you would know something more about the Awami League so I am asking you, there was a reason why you didn’t know anything more.

The Interpreter:  Since I have been learning and getting involved with Awami League and I am getting deep into Awami League I’m getting knowledge about Awami League.  Since then I have been targeted my family, with my family by other people.

As part of the hearing of this appeal, those passages were not only referred to by the Appellant in his written submissions but were read to him by the interpreter. 

7                     He was invited to comment upon how he could contend that he was not given an opportunity to discuss his knowledge of the Awami League before the Tribunal on the third occasion.  He provided no answer.  The contention that the Appellant was denied procedural fairness is thus difficult to understand. 

8                     On behalf of the First Respondent it was submitted that the Tribunal on the third occasion could properly have regard to the material which was before the earlier Tribunals as previously constituted.  Reliance was placed upon the decision of Emmett J in SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 at [17].  Those submissions seem to be well-founded. 

9                     The Appellant was given every opportunity to be heard on those matters he now maintains were not “discussed”.

10                  The first ground of appeal is rejected.

The second ground: The “errors” of the Tribunal 

11                  It is equally difficult to give content to the second ground of appeal.  The “errors made by the Refugee Review Tribunal” have not been identified.  A reading of the decision of that Tribunal discloses no self-evident error.  The second ground of appeal is dismissed.

The third ground: An improper exercise of power

12                  Again there is no identification in the Notice of Appeal of the “purpose” being pursued by the Federal Magistrate, nor is there any identification of the “enactment”.  In the absence of compelling evidence to the contrary, no conclusion would be open other than that the Federal Magistrate was properly discharging his responsibilities.  An unparticularised allegation that a Federal Magistrate made a decision which was “an improper exercise of the power conferred by the enactment” should not be entertained. 

13                  It should however be noted that a reading of the decision of the Federal Magistrate in the present proceedings discloses an account of the procedural history preceding the present matter and an account of the reasons of the Tribunal.  Scarlett FM’s reasons for decision ably support the decision he reached and deny any impropriety in the exercise of power. 

14                  The third ground of appeal is dismissed. 

ORDERS

15                  The orders of the Court are:

1.                  The appeal is dismissed.

2.                  The Appellant is to pay the costs of the First Respondent fixed at $2500.

Associate:

Dated: 17 December 2007