FEDERAL COURT OF AUSTRALIA

SZLLG v Minister for Immigration & Citizenship [2008] FCA 1644

SZLLG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1224 of 2008

PERRAM J

7 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent in the sum of $2,100.

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

1                     The present appellant is a national of India who arrived in Australia on 27 March 2007 and applied for a protection visa.  A protection visa is the kind of visa applied for where a person wishes to seek refugee status in Australia.  In order to make out an entitlement to a protection visa, it is necessary for an applicant to demonstrate to the satisfaction of the Minister that the person is someone to whom Australia has protection obligations by reason of Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951.  The application for the protection visa was dealt with by a delegate of the Minister.  The application for a protection visa was refused.

2                     The provisions of the Migration Act 1958 (Cth) provide for a person who has had an application for a protection visa refused to apply for a review of that decision to the Refugee Review Tribunal (“the Tribunal”).  The appellant availed himself of that entitlement.  The hearing before the Tribunal took place on 12 July 2007 and the Tribunal handed down its decision affirming the delegate’s decision on 21 August 2007.  The essential basis of the appellant’s argument before the Tribunal was that he had become disaffected from the CPI(M), a species of the Communist Party in India, in consequence of which he had become blamed for a number of problems by that party and had joined the CPI(ML).

3                     The Tribunal found that the evidence of the appellant was “vague and not convincing.”  The Tribunal was also not satisfied that the appellant had in fact been a member of the CPI(ML).  Despite repeated questioning and prompting by the Tribunal, the appellant’s evidence about why he left the CPI(M) to join the CPI(ML) and his role in the CPI(ML) was very general and did not convince the Tribunal.  In the circumstances, the Tribunal affirmed the decision of the delegate.  There is, following an adverse decision by the Tribunal, no further appeal in the sense that that word is generally used. 

4                     However, s 476 of the Migration Act 1958 (Cth) confers upon the Federal Magistrates Court the same jurisdiction that the High Court has under s 75(v) of the Constitution; that is, it confers upon the Federal Magistrates Court the ultimate supervisory jurisdiction over Commonwealth officers which the High Court has as a matter of entrenched jurisdiction.  That jurisdiction operates, at least in the High Court, as a safeguard to ensure that the executive government is at all times maintained within the limits of the law.  So characterised, it is possible to see that the kind of jurisdiction contemplated by s 75(v) is not a jurisdiction which permits general review in circumstances where there is some element of dissatisfaction with an administrative decision.

5                     There are extensive laws in this country both under statute and at common law for the review of decisions of an administrative character.  Ordinarily, those regimes would provide a means by which decisions of the Tribunal might be challenged.  However, the effect of s 474 of the Migration Act 1958 (Cth) is to have carved out from those regimes that kind of review.  It follows that the only review which is available of a decision of the Tribunal is that contemplated in s 476.  This is a very limited kind of review.  In order to make out an entitlement to relief in the Federal Magistrates Court, it was necessary for the present appellant to demonstrate to the Federal Magistrates Court the existence of a jurisdictional error, for it was only if such an error was established that jurisdiction to grant relief of the kind referred to in s 75(v) would arise.

6                     Before the learned federal magistrate a number of grounds were asserted by the appellant.  The federal magistrate dealt with those grounds at great length and on 24 July 2008 found that none of them had succeeded in establishing the existence of a jurisdictional error.  The application for constitutional writs was therefore dismissed.  An appeal lies from a decision of a federal magistrate in a “migration decision” to this Court.  However, the provisions of the Federal Court of Australia Act 1976 (Cth) require in such cases that the appeal is to be heard not by a Full Court but by a single judge of this Court.

7                     The appellant filed, on 6 August 2008, a notice of appeal.  That notice of appeal raised two grounds only.  The grounds were stated as follows:

1.         The single judge of the Federal Magistrate Court in his Honours judgment delivered on the 24 July 2008 failed to find error of law, jurisdictional error, procedural fairness and relief under Section 39B of the Judiciary Act 1903.

2.         The Honourable F.M. erred in not finding that the Tribunal’s decision was unjust and was made without taking into account the full gravity of circumstances and consequences of the claim.

8                     It is to be borne steadily in mind that the purpose of the grounds of appeal in this document should be to identify, within the reasons of the federal magistrate, error in the relevant sense.  That is, it is necessary to identify in the manner in which the federal magistrate went about analysing the appellant’s entitlement to relief some error in approach.

9                     The grounds of appeal which have been articulated do not in my opinion specify any ground upon which such an error might be identified.  As to the first ground, whilst it asserts subject matters which might be regarded as ones which in themselves could be grounds for review in the Tribunal, the ground does not in fact indicate what it was about the federal magistrate’s decision which makes that matter manifest.  In those circumstances, I do not regard the first ground as disclosing any argument whatsoever that there was an error by the federal magistrate.

10                  As to the second ground, it is simply not an error which this Court can correct to assert that the Tribunal’s decision was unjust and that the federal magistrate had erred in not finding that.  Neither is it, in my opinion, an error in the relevant sense to assert that the federal magistrate failed to find that the Tribunal had made its decision without taking into account the gravity of the appellant’s circumstances and the consequences of his claim.  Indeed, although I do not regard that claim as being sufficiently particularised to require a consideration of it, I should say in fairness to the learned federal magistrate that the question of whether the Tribunal had considered the serious harm to him was expressly considered by the federal magistrate at paragraphs [53] to [58] in his reasons for judgment.  Thus, my conclusions in relation to the second ground are, first, that the ground does not specify anything which could amount to an appeal ground in this Court; and secondly, even reading it in the most generous fashion to identify or locate such a ground, it is self-evidently contradicted by the terms of the federal magistrate’s decision.

11                  In those circumstances, the appeal to this Court is without substance.  I should say that there should be no particular criticism of the appellant for filing such an appeal.  The circumstances in which he finds himself are no doubt difficult and there is in some sense a surreal aspect to requiring unrepresented non-English speaking parties to identify jurisdictional error, a concept which Australian lawyers themselves struggle with.  Be that as it may, the necessary consequence of my conclusions is that the appeal must be dismissed with costs.

12                  The appeal is to be dismissed with costs which I fix at $2,100.

Associate:

Dated:         20 November 2008