FEDERAL COURT OF AUSTRALIA

SZNMR v Minister for Immigration and Citizenship [2009] FCA 1561

SZNMR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1015 of 2009

SPENDER  J

24 NOVEMBER 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs of and incidental to the appeal, fixed in the sum of $4,050.00.

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 Emmett FM, SZNMR v the Minister for Immigration and Citizenship and Another [2009] FMCA 837. 

2                     Emmett FM dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 13 March 2009, affirming a decision of the delegate of the first respondent to refuse to grant the appellant a protection visa. 

3                     The appellant is a male citizen of India born in 1979.  He arrived in Australia on 9 July 2008 and applied for a protection visa on 21 August 2008.  A delegate of the first respondent refused the application for a protection visa on 18 November 2008. 

4                     On 10 December 2008 the appellant applied to the Tribunal for a review of that decision.  The Tribunal held a hearing on 13 February 2009, and in a decision of 13 March 2009, handed down on 16 March 2009, the Tribunal affirmed the decision of the delegate. 

5                     The appellant applied to the Federal Magistrates Court for judicial review of that decision on 21 April 2009, and on 27 August 2009 Emmett FM dismissed that application. 

6                     The appellant lodged a Notice of Appeal with this Court on 15 September 2009. 

7                     The Tribunal in its reasons found that the appellant was not a credible witness.  It noted numerous inconsistencies in his claims relating to both his clash with corrupt police in 2007 and with Muslims in 2002 or 2003, and concluded that he was not a witness of truth.  The Tribunal concluded that it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason. 

8                     The grounds before the Federal Magistrates Court were unparticularised, without reference or support from evidence or submissions.  They were: 

1.         Jurisdictional error

2.         Breach of procedural fairness; 

3.         Breach of natural justice

9                     Emmett FM referred to the formulation of those grounds and said that plainly none of the grounds identified a particular error capable of review by the Federal Magistrates Court.  Nonetheless, the Federal Magistrate examined the reasons of the Tribunal and concluded that the Tribunal had complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review. 

10                  The grounds of appeal to this Court are:

1.         I am the citizen of India.

2.         I have been given decision from RRT as well as Federal Magistrate Court, but they refused my demands for refugee protection.

3.         I am eligible for protection visa. I have given my supporting documents to both offices. But they hesitate my plead. So I wish to appeal.

4.         So I am not at all satisfied with this decision. The Hon: Court did not consider my real incidents and actual matter. So I wish to appeal.

5.         I was cruelly tortured by Indian police and illegally they ill treated me. So I could not use my real passport for my travel. So I used a fake passport in the name of Rejoy Varghese.

6.                  I lost my real passport in the name of [SZNMR]. When I was sleeping in the Park. Somebody had stolen my passport. I gave information about that to the Indian Embassy. But they threatened me that, they will send me back to India. I have told about all those details to the Federal Magistrate Court. They also hesitate to accept my plead. So I wish to appeal to the Federal Court.

11                  The Tribunal’s conclusion that the appellant was not a witness of truth has been described as a finding of fact par excellence by McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at  [67].  The Tribunal’s findings were open to it for the reasons which the Tribunal gave.  Neither the Federal Magistrates Court nor the Federal Court of Australia can review the merits of the Tribunal’s decision, as the comments of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 demonstrate.  There is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact:  Abebe v  Commonwealth (1999) 197 CLR 510 at [137]. 

12                  The Notice of Appeal to this Court contains the six grounds of appeal set out above.  These simply restate the appellant’s claims, including his claim to have lost a copy of his “real” passport in Australia.  None of the six grounds identify any appellable error by Emmett FM.  There is therefore no ground on which to allow an appeal from her Honour’s judgment. 

13                  It is plain that the appellant does not understand the nature of an appeal to this Court from a judgment of the Federal Magistrates Court.  In his oral submissions to this Court the appellant said that the claims in his application for a protection visa were true, and the fact that he failed to state certain facts was a consequence of his ignorance of procedure. 

14                  He gave an explanation for not stating at the Tribunal hearing various events.  He repeated his claim that the police had tortured him and he said that parts of his claims were  made up by his solicitor. 

15                  These explanations for the inconsistencies in his various accounts do not demonstrate that there was any error in the conclusion to which the Tribunal came.  The conclusion as to the credibility of the appellant by the Tribunal was, in any event, a finding of fact, and there is no error of law in the Tribunal making a wrong finding of fact, if that is what it did. 

16                  It follows that there is no basis on which the Federal Magistrates Court could interfere with the decision of the Tribunal on the grounds alleged and nothing has been demonstrated to indicate error in the conclusions of the Federal Magistrate. 

17                  For these reasons the appeal should be dismissed. 

18                  It seems to me that I ought to fix costs, rather than go to the expense and inconvenience of having those costs taxed.  I am satisfied that the costs sought by way of a fixed amount in the sum of $4,050.00 is lower than the party and party costs which would be assessed on taxation.

19                  I therefore order that the appeal be dismissed with costs, which I fix in the sum of $4,050.00 

Associate:

Dated:         21 December 2009