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Federal Court of Australia |
Last Updated: 17 March 2005
FEDERAL COURT OF AUSTRALIA
SZBBO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 193
MIGRATION – application for protection visa refused
– motion to dismiss appeal as abuse of process – application to
amend
notice of appeal – claim that Tribunal failed to consider essential
integer of appellant’s claim – claim that Tribunal
acted in a
manifestly unreasonable or illogical manner – no error of law or principle
by Tribunal or Federal Magistrate established
Dranichnikov v
Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389
distingiuished
SZBBO
v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
NSD 1821 OF 2004
TAMBERLIN
J
SYDNEY
4 MARCH 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
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BETWEEN:
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SZBBO
APPELLANT |
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AND:
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MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
RESPONDENT |
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DATE OF ORDER:
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WHERE MADE:
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THE COURT ORDERS
THAT:
1. The appeal be
dismissed.
2. The appellant pay the costs of the
respondent.
Note: Settlement and entry of orders is dealt
with in Order 36 of the Federal Court Rules.
ON APPEAL FROM THE FEDERAL MAGISTRATES
COURT
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AND:
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REASONS FOR JUDGMENT
1 In this matter, a Motion has been taken out to dismiss a Notice of Appeal filed on 7 December 2004 on the basis that there has been an abuse of process.
2 A number of matters have been raised in relation to this appeal. The first question concerns the Notice of Appeal dated 7 December 2004, which simply set out a single ground to the effect that the appellant had a conversation with Jordanian friends about the Royal Family and the Jordanian Government and this had been reported to the Jordanian Government. The appellant said that he needed to have a hearing in the Full Federal Court as he was sure that he would have evidence with him to show the Court. I point out at this stage that no evidence has been filed in the Court independently of the appellant’s assertion.
3 There has been a long and detailed history of this matter, including evidence tendered at the hearing before me by the respondent to provide a basis for an argument that there had been an abuse of process in this matter and that the matter ought be struck out. In particular, there was an affidavit filed by a police officer, Franz Gaal, who sets out a conversation with the appellant on 7 December 2004, wherein the appellant said that he would continue to appeal to stay in Australia as it cost the Australian Government money and that he already owed the Government about $250,000 in court costs. The appellant also said, according to the affidavit, that:
"I change the reason why I appeal because nobody has ever challenged me about it."
4 This incident is an example of the appellant’s conduct in changing the basis of his appeal. On 23 December 2004, after a directions hearing, the appellant filed an Amended Notice of Appeal setting out a ground of review which, it is common ground, was not raised before the Federal Court Magistrate.
5 Subsequently, he has filed a Further Amended Notice of Appeal which sets out two basic grounds. In order to pursue the matters in this Notice of Appeal, it is necessary for the appellant to obtain the leave of the Court to amend. That, in turn, involves a consideration of whether leave ought be granted having regard to whether any arguable case has been indicated and also having regard to the history of the matter and the delay in raising these matters. In addition, there is a further complication in that the grounds were not advanced before the learned Federal Court Magistrate and, therefore, it is difficult to see how the Federal Court Magistrate could have erred in respect of these new grounds.
6 Nevertheless, in order to determine whether leave ought be granted, I have had regard to the grounds of appeal sought to be raised in the Further Amended Notice of Appeal.
7 The first ground raised is that the learned Magistrate erred in failing to determine whether the Tribunal had constructively failed to exercise its jurisdiction because it had not considered an essential integer of the appellant's claim, namely, whether the appellant had a well-founded fear of persecution in Jordan on the basis that he could not avail himself of the protection in that country due to discrimination against him on the basis of his political opinion.
8 I was not referred in any of the material to any claim which raised this matter even in an indirect manner. This case, therefore, is quite unlike the case in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389, where a specific claim had been made but the High Court found, contrary to the view of the Full Court of this Court, that the claim had not been considered by the Tribunal.
9 It is not possible, as I indicated, to see in this case any claim out of which one could spell the argument which is now sought to be put. Counsel could not point to anything in any of the material which fairly could be said to raise this matter. This objection cannot be sustained.
10 The second ground sought to be raised in the Further Amended Notice of Appeal is that there was an error in that the Tribunal, in effect, acted in a manifestly unreasonable or illogical manner or addressed the wrong issue. It is said that the Tribunal considered that innocuous or general remarks made in private were not capable of encouraging the authorities in Jordan to take an adverse interest in the appellant. The second basis for this ground is that the Tribunal placed undue weight on the fact that the appellant applied for a protection visa only after his student visa had been cancelled. Finally, it is said that the Tribunal placed an unwarranted gloss upon independent country information indicating that although defamation of heads of state was forbidden in Jordan, a private conversation in Australia would not be punished.
11 The position is not entirely settled as to whether manifest illogicality or unreasonableness can constitute jurisdictional error so as to warrant a variation or setting aside of a decision of the Tribunal. However, having carefully considered the terms of the reasoning in the decision of the Tribunal, I am not persuaded that there is any manifest illogicality or, indeed, any illogicality in the reasoning adopted by the Tribunal.
12 In this case, it is important to bear in mind the circumstances in which the claim is raised. The appellant is a citizen of Jordan. The appellant does not claim to have suffered harm amounting to persecution in the past. His case is that he had a conversation with some young Jordanians in Australia in which he was critical of Jordanian authorities and of the Jordanian Royalty. He says that he was informed by one of the persons who heard the statements that the terms of the conversation had become known to persons in Jordan such that he would be at risk and would suffer persecution if he were to return to Jordan. He suspected that one of the members of the group had returned to Jordan and told the authorities about the conversation.
13 The Tribunal did not accept as a matter of fact that it was reported to Jordanian authorities that the appellant had spoken critically of the Jordanian Government and Royal Family. It accepted that independent evidence was to the effect that false or exaggerated information outside the country that attacks state dignity and defames heads of state is forbidden. The Tribunal expressed the view that, even if this had occurred, it was not satisfied that a private conversation between young men at which no other national appeared to have been present, would incur penalties even if the information dissemination were to come to the attention of Jordanian authorities. This is a question of fact.
14 There was no independent evidence called of any telephone call by any of the young Jordanians with whom the conversation had taken place. For reasons given by the Tribunal, the appellant was not believed on this point. The Tribunal member said that the appellant was vague about this incident and was not able to recall when the telephone conversation took place and that he did not explain why he believed his friend when told about being reported. The Tribunal took the view that if the authorities were in fact interested in his Australian conversation, they would have communicated with the appellant's parents in Jordan, however, the parents appear to have been unaware of the conversation. The Tribunal was not satisfied that the authorities were informed of the critical comments or that they had any interest in the appellant for this reason or any other reason. Even if they had been informed, the Tribunal was not satisfied that they would pursue him because of the remarks made privately.
15 These findings are fatal to the case sought to be put forward by the appellant in the Further Amended Notice of Appeal. They are factual findings. They are not matters for this Court or for the learned Magistrate below but are within the province of the Tribunal.
16 Having regard to the above considerations, I am not persuaded that any error of law or principle has been established in this matter and I therefore refuse leave to amend the grounds on the basis that neither the original Notice of Appeal nor the grounds now sought to be raised serve any arguable question of law or principle which would warrant this Court setting aside or varying the decisions below.
17 Accordingly, I dismiss the application with costs.
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I certify that the preceding seventeen (17) numbered paragraphs are a true
copy of the Reasons for Judgment herein of the Honourable
Justice
Tamberlin.
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Associate:
Dated: 14 March 2005
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Counsel for the Appellant:
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A Maroya
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Counsel for the Respondent:
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V Hartstein
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Solicitor for the Respondent:
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Blake Dawson Waldron
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Date of Hearing:
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4 March 2005
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Date of Judgment:
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4 March 2005
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2005/193.html