SZGAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 979 (29 June 2005)

Last Updated: 22 July 2005

FEDERAL COURT OF AUSTRALIA

SZGAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 979

SZGAD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD853 OF 2005




EMMETT J
29 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD853 OF 2005

BETWEEN:	SZGAD APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	29 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the appeal be dismissed as incompetent;

2. the appellant pay all costs incurred by the respondent in relation to the appeal.




















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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD853 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZGAD APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	29 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant is a citizen of Bangladesh. He arrived in Australia on 26 April 2001, and on 2 May 2001 lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) (‘the Act’). The appellant claimed to have been a long-term member and supporter of the Freedom Party in Bangladesh since 1991.

2 On 10 May 2001, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 6 June 2001, the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of that decision. On 19 March 2003, the Tribunal affirmed the decision not to grant a protection visa.

3 On 17 April 2003, the appellant commenced a proceeding in the Federal Magistrates Court seeking a review of the Tribunal’s decision. On 12 February 2004, Driver FM dismissed the proceeding and ordered the appellant to pay indemnity costs. Driver FM observed that the Tribunal’s decision turned entirely on its findings of credit. That finding was based on the evidence given by the appellant at a hearing held by the Tribunal at which he answered questions put to him directly by the Tribunal.

4 During the hearing before the Tribunal, material that the Tribunal considered adverse to the appellant was put to him. The Tribunal also told the appellant that his answers to questions regarding the Freedom Party indicated that he knew nothing of significance about the Party, apart from the names of its leaders. Consequently, the Tribunal did not accept the appellant’s claims. Driver FM concluded that there was no jurisdictional error on the part of the Tribunal in making those findings.

5 On 2 March 2004, the appellant filed a notice of appeal to this Court from the decision of Driver FM. The appeal came on for hearing before me on 6 May 2004, the Chief Justice having determined that the matter be heard by a single judge. I concluded that there was no substance in the matters that were put to Driver FM, and that Driver FM had reached a demonstrably correct conclusion.

6 On 2 June 2004, the appellant filed an application for special leave to appeal to the High Court. On 8 March 2005, the application for special leave was dismissed with costs by Hayne and Callinan JJ. Hayne J observed that there was no reason to doubt the correctness of the reasons given and orders made by this Court, and that an appeal to the High Court would enjoy no prospect of success.

7 The appellant then commenced a further proceeding in the Federal Magistrates Court, on 1 April 2005. That proceeding sought to impugn the same decision of the Tribunal. The grounds stated in the application of 1 April 2005 were as follows:

(a) the decision of the Tribunal is affected by jurisdictional error and by a constructive failure to exercise jurisdiction;
(b) the Tribunal breached the judicial duty to make or apply a finding of law using formal logic, failed to act judicially and exercised judicial power in a manner reserved for the exercise of executive power;
(c) the Tribunal did not maintain a separation between its judicial and executive exercises of power and breached its judicial duty to use formal logic.

8 Particulars were then set out which might be summarised as follows:

1. There was a fallacy of formal logic in the finding at law by the Tribunal as to the availability of protection to the applicant from persecution for political opinion through the courts of Bangladesh, and subsequently the finding in law that the applicant did not have a well-founded fear of being persecuted. The fallacy arises from an invalid inference pattern that is described in terms of formal logic. The party leaders are struggling for their life. At any time the leaders can be sentenced to death. As a junior member of the same political party, the appellant is also running his life in a great danger. Upon the appellant’s return, he may face death sentence by the courts of Bangladesh. This matter was totally ignored by the Tribunal member.
2. The fallacy of sentential logic occurs when the Tribunal denies the antecedent such that it held that if the appellant was found or will be in future found guilty by the courts, then the appellant committed the crimes charged of him. The appellant was found guilty by the courts and, in the future, may or may not be found guilty by the upper courts. The antecedent denied is the persecution of the appellant by the courts for his political opinion as a member of the Freedom Party.
3. The fallacy of syllogistic logic occurs when the Tribunal fails to understand that some prominent and high level ranking members of the Freedom Party are unable to defend themselves before an independent judiciary. The appellant is a low level member of the Freedom Party, therefore the appellant will not be able to defend himself before an independent judiciary. Therefore, the Tribunal made errors of distribution.

9 The particulars then went on to repeat the assertion that the appellant claimed to face harm because of his political opinions as a member of the Freedom Party and as a result of his membership of the Freedom Party. Thus, the whole of the grounds relied on in the fresh application are based on the premise that the applicant was a member of the Freedom Party. That premise, as a matter of fact, was rejected by the Tribunal.

10 The Minister moved the Federal Magistrates Court for summary dismissal of the proceeding on the ground that it was frivolous or vexatious and otherwise an abuse of process. For reasons published on 27 May 2005, Raphael FM dismissed the proceeding and ordered the appellant to pay the Minister’s costs of the proceeding.

11 On 30 May 2005, the appellant filed a notice of appeal to this Court. No application for leave to appeal has been filed. The orders of Raphael FM are interlocutory, and leave to appeal is therefore required.

12 For the reasons I have indicated, I consider that the proceeding commenced in the Federal Magistrates Court on 1 April 2005 is clearly vexatious. It seeks to ventilate again an argument that was incapable of maintenance in the first place. That is to say, it appears to attempt to call into question, once again, the factual finding made by the Tribunal that the appellant was not a member of the Freedom Party.

13 The grounds specified in the notice of appeal, filed on 30 May 2005, appear to be completely without substance. They simply assert constructive failure of jurisdiction, procedural unfairness and misconception of duty. The grounds assert that the Tribunal failed to consider material presented to the Tribunal. Those were not grounds raised before the Federal Magistrates Court.

14 Even if I were to treat the notice of appeal as an application for leave to appeal, the appeal is completely without substance and would be doomed to fail. The appeal should be dismissed as incompetent.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated: 22 July 2005

The Appellant appeared in person
Solicitors for the Respondent:	Blake Dawson Waldron
Date of Hearing:	29 June 2005
Date of Judgment:	29 June 2005