FEDERAL COURT OF AUSTRALIA

MZZXN v Minister for Immigration and Border Protection [2015] FCA 503

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the first respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This is an appeal from a judgment of the Federal Circuit Court of Australia given on 29 January 2015, wherein an application for writs of certiorari, mandamus and prohibition in relation to a decision of the second respondent, the Refugee Review Tribunal (“the Tribunal”), given on 3 December 2013 was dismissed. In that decision, the Tribunal had affirmed an earlier decision of a delegate of the first respondent, the Minister for Immigration and Border Protection, to refuse to grant the applicant a protection class XA visa under s 65 of the Migration Act 1958 (Cth) (“the Act”).

2    The appellant, who was legally represented in the Federal Circuit Court, relied then upon three grounds, each of which was copiously particularised:

1.    The Tribunal engaged in jurisdictional error by misconstruing or misapplying the relevant legal test, whether the applicant has a “well-founded fear” of being persecuted for a Convention reason.

….

2.    The Tribunal engaged in jurisdictional error by taking into account irrelevant considerations, or failing to take into account relevant considerations, in applying the relevant legal test whether the applicant has a “well-founded fear” of being persecuted for a Convention reason.

….

3.    The Tribunal erred by failing to ask itself the correct question.

3    An understanding of these broadly-stated grounds required consideration of the particulars to each. In its reasons published 29 January 2015, the Federal Circuit Court gave the particulars that consideration and did so both carefully and comprehensively.

4    In his appeal in this court, the appellant relies upon the following grounds:

1.    Jurisdictional error on the Tribunal’s part in the manner it addressed the issue of whether the applicant had a well-founded fear of being persecuted for a convention reason.

2.    Tribunal failed to ask itself the correct question, and did so because it failed to apply the approach taken by the High Court in Minister for Immigration and Border Protection v SZSCA.

3.    Procedural error that Tribunal asked me too many complicated question [sic] and if I get depressed and couldn’t able to explain my claims in more details.

The appellant attached six pages of typewritten elaboration upon these grounds, which counsel for the respondent Minister accepted as his written outline of submissions for the purpose of the appeal.

5    Both in that outline and in the oral submissions which the appellant made today, there are three broad categories of challenge to the Tribunal’s consideration of his case, and to its decision in the matter. First, the appellant complains about many of the Tribunal’s findings of fact, about the inferences which it was prepared to draw from the primary facts, and from its factual reasoning in a number of respects. Secondly, the appellant refers to a number of the Tribunal’s findings or conclusions which, he submits, appear to have paid insufficient regard to things which he told the Tribunal, and to which the Tribunal did not explicitly refer or to which it referred in a different and inappropriate way in its published reasons.

6    Each of those two broad categories of submissions amounts essentially to an attempt to re-agitate the factual or meritorious case which the appellant says he ran before the Tribunal. Apart from the circumstance that the only evidence before the court – that is, before both the Federal Circuit Court and this court – as to the course of the hearing in the Tribunal, and as to the nature of the propositions put to the Tribunal on behalf of the appellant, is the Tribunal’s reasons itself. These first two areas of challenge encounter the insuperable difficulty that they do not engage with the requirements of a jurisdictional error case of the kind which it was his obligation to undertake in the Federal Circuit Court. Nearly all of what he has put to me this afternoon amounts to a re-agitation of factual and meritorious issues which might well have been appropriate had the Federal Circuit Court been exercising a conventional appellate jurisdiction from the Tribunal, but, as his Honour in that court observed, the jurisdiction which he was exercising was not an appellate one. He was not concerned with whether the Tribunal had been right or wrong. He was not concerned with frailties or imperfections in the Tribunal’s reasons. Rather, he was concerned with whether the three jurisdictional grounds to which I have referred were made out.

7    In his submissions in this court, the appellant, who is not, regrettably, legally represented, simply did not engage with the judgment of the Federal Circuit Court at this level of detail. Specifically, I would hold that nothing that the appellant has said, either in writing or orally, has gone any distance towards sustaining either of the first two challenges advanced in this court.

8    With respect to the second of the appellant’s grounds of appeal, I would only wish to add that the case of Minister for Immigration and Border Protection v SZSCA (2014) 314 ALR 514 was a judgment which proceeded entirely by reference to the facts of that particular case. I am satisfied that those facts have no relevant analogue in the facts of the present case. I agree with the judge below that there is nothing in the jurisprudence in SZSCA which would be of any assistance to the appellant in this appeal.

9    The third broad category of complaint which the appellant has made, both in writing and orally, reflects in part his third ground of appeal, being a reference to the complicated questions which the Tribunal asked of him and the difficulty which he had explaining his claims in such an environment. But the complaint which he makes in his submissions goes beyond that ground in that it includes also an allegation that he was procedurally disadvantaged in the Tribunal because he did not have the assistance of an interpreter.

10    Neither in the more limited aspect articulated in the third ground of appeal, nor in the broader aspect covered by the appellant’s submissions, was anything of this nature part of his case in the Federal Circuit Court. Nothing has been put to me which would make it appropriate to allow the appellant to introduce complaints of this kind at the appellate stage, they not having been the subject of proper investigation before the Federal Circuit Court.

11    When issues of this kind are raised – that is to say issues which relate to the procedure used by the Tribunal – it is of fundamental importance that the Minister have proper notice, as often there will be means of discerning, at the detailed factual level, exactly what happened before the Tribunal and, therefore, the strength of the claims referred to. That has not happened here. All that I have are the assertions made by the appellant in submissions, both in writing and orally, and that, in my view, is a conspicuously inadequate foundation upon which to build a ground of appeal of the kind referred to.

12    In sum, I would hold that the appellant has not made good any of his three grounds of appeal and has not otherwise established that the Federal Circuit Court was in error in the way that it disposed of his application for certiorari, mandamus and prohibition. I propose to order that the appeal be dismissed.

Associate:

Dated:    2 June 2015