FEDERAL COURT OF AUSTRALIA

SZGOD v Minister for Immigration and Citizenship [2009] FCA 1491

SZGOD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 748 of 2009

SPENDER J

26 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the costs of the first respondent of and incidental to the appeal, fixed in the sum of $1,600.00.

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                     This is an appeal from a judgment of Raphael FM made on 2 July 2009: [2009] FMCA 635. 

2                     The appellant is a male citizen of India born in 1971.  He arrived in Australia on 9 August 2004 on a subclass 420 Entertainment (business relations) visa. 

3                     On 16 August 2004 the appellant lodged an applicant for a Protection (Class XA) visa with the Department of Immigration and Citizenship.  That application included his claim that he feared persecution on the basis of his political opinion as a member of the Communist Party and his involvement in industrial action.  He also claimed that he was attacked by members of scheduled castes because he was a Christian.

4                     The appellant’s application for a protection visa was refused by a delegate of the first respondent on 16 September 2004.  On 11 October 2004 he applied to the Refugee Review Tribunal (the Tribunal) for a review of that decision.  The Tribunal on that first occasion affirmed the decision of the delegate on 26 May 2005, but on 3 July 2006 Driver FM made orders by consent quashing that decision and remitting the matter to the Tribunal for determination according to law.  The basis of that remittal was there had been a failure by the Tribunal to comply with the obligations of s 424A of the Migration Act 1958 (Cth) (the Act).

5                     On 26 September 2006, the Tribunal, differently constituted, affirmed the decision of the delegate. 

6                     On 5 August 2008 the Full Federal Court, constituted by Gray, Giles and Besanko JJ, ordered that the decision of the Tribunal be quashed and the matter be remitted to the Tribunal to be determined according to law.  The basis of that decision of the Full Court was that the appellant had not been invited to give evidence at a hearing before the Tribunal on the second occasion. 

7                     On 11 December 2008, in a decision notified to the appellant on 12 December 2008, a differently constituted Tribunal (the third Tribunal) affirmed the decision under review.

8                     The appellant applied to the Federal Magistrates Court for review of that decision on 6 January 2009.  He filed an amended application on 18 March 2009.  The original application to the Federal Magistrates Court contained a ground which is substantially the same as the ground on which the appellant relies in his appeal to this Court.  However, his amended application filed on 18 March 2009 did not rely on that ground, and it is apparent from the reasons for judgment of Raphael FM that that ground was not argued before the Federal Magistrates Court.

9                     On 2 July 2009, Raphael FM dismissed the application to the Federal Magistrates Court.  The appellant lodged a Notice of Appeal with this Court on 21 July 2009. 

10                  The only ground of appeal in that Notice of Appeal is as follows:

3.                   The Court below erred in that it ought to have held that on the evidence before the Tribunal it was open to the Tribunal to find that the appellant was a refugee within the meaning of the Act.  In such circumstances the Tribunal erred in that:

Particular:

i.  it failed to properly apply the consideration that applicants for refugee status ought to be given the benefit of the doubt in circumstances where the Tribunal entertained the possibility that the applicants claims are plausible, which was the case here.

11                  The proposed ground of appeal fails to identify any appellable error in the decision of the Federal Magistrate.  It does assert that there was jurisdictional error on the part of the Tribunal. 

12                  Since the appellant requires the leave of the Court to raise a ground of appeal that was not argued below, the question of whether leave to raise that ground of appeal ought to be granted requires a consideration, amongst other things, of whether there is any utility in the grant of leave.

13                  Insofar as the proposed ground of appeal seeks to now contend that the Tribunal should have applied the “what if I am wrong” test, that contention is misconceived.  The short answer is that the ground of appeal is based on the claim that the Tribunal entertained the possibility that the appellant’s claims were plausible, and therefore it was obliged to consider the “what if I am wrong” test.  The Tribunal found that the appellant was not a credible witness on the basis of his vague and inconsistent evidence. 

14                  There was no indication by the Tribunal of any doubt about its rejection of the appellant’s claims.  It did not entertain the possibility that the appellant’s claims were plausible, and the doubts expressed by the Tribunal as to the credibility of the appellant’s evidence did not engage the “what if I am wrong” test. 

15                  Since there is no substance in the ground on an analysis of what the Tribunal did, with the consequence that there was no circumstance in which the “what if I am wrong” test called for application, the leave to raise this ground for the first time on appeal should be refused.

16                  The Federal Magistrate dealt with each of the grounds of appeal that were argued and were contained in the amended application to the Federal Magistrates Court.  The oral submissions by the appellant to this Court reveal a misunderstanding of what this Court can do on an appeal from the Federal Magistrates Court.  In summary, the appellant said in oral submissions that the decision of the Tribunal was wrong and contrary to the oral submissions he made to it, and further that the Federal Magistrate accepted the decision of the Tribunal without weighing it properly.

17                  The appellant submitted that his treatment at the hands of the Tribunal was not justifiable and that the Federal Magistrate did not consider his case carefully.  These complaints go to the merits of the judgment of the Tribunal and are contrary to what in fact the Federal Magistrate did on the appellant’s application.

18                  The reasons of Raphael FM for rejecting the two grounds of appeal on which the appellant relied before the Federal Magistrates Court are careful and comprehensive. 

19                  The fact that an appellant does not agree with the conclusions of a Federal Magistrate or the conclusions of the Tribunal does not provide a basis for allowing an appeal. 

20                  For the reason that there would be no utility in granting leave to rely on the only ground of appeal contained in the Notice of Appeal, leave to rely on that ground is refused.  The conclusions reached by the Tribunal were open to the Tribunal for the reasons which the Tribunal gave, and there is no appellable error shown in the decision of the Federal Magistrate. 

21                  For these reasons the appeal is dismissed.  I order that the appellant pay the costs of the first respondent of and incidental to this appeal, which I fix in the sum of $1,600.00. 

Associate:

Dated:         11 December 2009