SZNPI v Minister for Immigration and Citizenship [2010] FCA 106 (22 February 2010)

Last Updated: 24 February 2010

FEDERAL COURT OF AUSTRALIA

SZNPI v Minister for Immigration and Citizenship [2010] FCA 106

Citation:		SZNPI v Minister for Immigration and Citizenship [2010] FCA 106
Appeal from:		SZNPI v Minister for Immigration & Anor [2009] FMCA 1038
Parties:		SZNPI v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR
File number:		NSD 1197 of 2009
Judge:		FLICK J
Date of judgment:		22 February 2010
Catchwords:		MIGRATION – leave to raise new ground refused – failure to identify appellable error – need to state ground of appeal – failure to do so – mere assertion of “jurisdictional error” – no jurisdictional error Held: Appeal dismissed
Legislation:		Migration Act 1958 (Cth)
Cases cited:		Abeyesinghe v Minister for Immigration and Multicultural Affairs [2004] FCA 1558, applied Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176, followed Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547, applied Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259, followed NABM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 294, 124 FCR 375, cited NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, applied NAXD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 243, cited NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195, 156 FCR 419, followed Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611, followed SQMB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 165, cited SZEPU v Refugee Review Tribunal [2006] FCA 633, followed SZITU v Minister for Immigration and Citizenship [2008] FCA 758, followed SZMIP v Minister for Immigration and Citizenship [2009] FCA 217, cited SZNNK v Minister for Immigration and Citizenship [2009] FCA 1386, applied SZNPI v Minister for Immigration [2009] FMCA 1038, affirmed VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, followed
Date of hearing:	8 February 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	26
The Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Mr P Reynolds
Solicitor for the First Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION	NSD 1197 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNPI Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	22 FEBRUARY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The Appellant is to pay the costs of the First Respondent.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NSW DISTRICT REGISTRY
GENERAL DIVISION	NSD 1197 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNPI Appellant

AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FLICK J
DATE:	22 FEBRUARY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The Appellant is a citizen of Bangladesh.
2. He arrived in Australia on 20 October 2008 and applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 22 October 2008. His claims were set forth in a 1½ page statement dated 27 October 2008 and forwarded to the Department on that date. He claimed to be a member of and heavily involved in Awami League politics and feared retaliation from the Bangladesh Nationalist Party. He was invited to attend an interview before the delegate on 5 January 2009 and he apparently attended that interview. The Minister’s delegate refused to grant the visa on 19 January 2009 and notified the applicant of the decision by letter dated 23 January 2009.
3. An application for review was then lodged with the Refugee Review Tribunal on 20 February 2009. The now Appellant was invited to attend, and did in fact attend, a hearing before the Tribunal on 9 April 2009. In advance of that hearing the Appellant forwarded to the Tribunal “an evidence of persecution issued from my political party in Dhaka, Bangladesh”. That “evidence” was a four paragraph statement of the Secretary of the Awami League stating (inter alia) that the now Appellant was “a victim of severe repression by the armed Bangladesh Nationals Party (BNP) and fundamentalist party ...”. The Tribunal affirmed the delegate’s decision on 15 April 2009. The “Findings and Reasons” of the Tribunal are comparatively brief and state as follows:

[29] I accept that the applicant is a citizen of Bangladesh.

[30] I accept that the applicant is a supporter of the Awami League. However, his limited knowledge of his immediate area satisfies me that, although, with considerable assistance, he could identify some Awami league politicians, he does not have the activist profile which he claims. I do not accept that such a person as the applicant was or would be targeted by BNP thugs or by the RAB, even during times when the Awami League was not in power. I therefore do not accept that the applicant is or was on any black list or was sought by the RAB or by anyone else for reason of his political opinion. I do not accept that the applicant went into hiding for any period at all before leaving Bangladesh for Papua New Guinea.

[31] It is possible that, during the time when the BNP was in power, he was asked for political donations. However, the applicant lives in an overwhelmingly Awami League area and I do not accept that such demands threatened harm amounting to persecution. In any event, his party is now in Government and state protection would be available.

[32] For all these reasons, I do not accept that there is a real chance that the applicant would suffer in Bangladesh harm of any kind amounting to persecution for reason of his political opinion or for any other Convention reason.

[33] I find that the applicant does not have a well founded fear of persecution in Bangladesh for a Convention reason.

4. An application for review of the Tribunal’s decision was filed with the Federal Magistrates Court on 15 May 2009. The grounds upon which that application was advanced were as follows:
   1. The Tribunal/2nd Respondent failed to follow the procedural fairness and natural justice.
   2. The Tribunal/2nd Respondent did not follow the procedures of Migration Act and Migration Regulation.
   3. The Tribunal/2nd Respondent’s decision involved in jurisdictional error and error of law.
      
5. That Court dismissed that application on 8 October 2009: SZNPI v Minister for Immigration [2009] FMCA 1038.
6. A Notice of Appeal was filed in this Court on 23 October 2009. The Grounds of Appeal are stated there (without alteration) as follows:
   1. His HONOUR ERRED By failing to find that the Second Respondent made jurisdictonal error.
   2. His Honour erred by failing not to consider that the Second Respondent made an error by bias of an opinion by an unKNOWN senior Leader.
   3. The Tribunal made a number of errors which was not considered by His HONOUR in deciding this case.
      
7. The Appellant appeared before this Court unrepresented. His oral submissions were provided with the assistance of an interpreter.
8. Only the ground which alleges “jurisdictional error” and possibly the ground which alleges “a number of errors” seem to be in common with the grounds resolved by the Federal Magistrate. The Federal Magistrate noted that the “nature of the alleged jurisdictional error has not been identified ...”. He further concluded that “no error is apparent ...”: [2009] FMCA 1038 at [10]. The Federal Magistrate further characterised any “error” as “merely a disagreement with the Tribunal’s fact finding” and (again) not jurisdictional error: [2009] FMCA 1038 at [11].
9. The Notice of Appeal as filed, and particularly Grounds of Appeal 1 and 3, fails to properly set forth any particular “ground” susceptible of consideration.
10. Even in the context of migration cases where appellants are frequently unrepresented, it remains the obligation of an appellant to demonstrate legal, factual or discretionary error on the part of the Federal Magistrate: Abeyesinghe v Minister for Immigration and Multicultural Affairs [2004] FCA 1558 at [4] per Kenny J; Applicant M47/2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 176 at [27] per Young J; SZEPU v Refugee Review Tribunal [2006] FCA 633 at [2] per Young J; SZITU v Minister for Immigration and Citizenship [2008] FCA 758 at [33] per Greenwood J. The jurisdiction relevantly entrusted to this Court is an appellate jurisdiction and no order may be made in the absence of appellable error.
11. Order 52 r 13(2) provides as follows:

The notice of appeal shall state:
(a) whether the whole or part only, and what part, of the judgment is appealed from;
(b) briefly, but specifically, the grounds relied upon in support of the appeal; and
(c) what judgment the appellant seeks in lieu of that appealed from.

A notice of appeal which simply states (for example) that “the learned primary judge erred in fact and law” does not satisfy the requirement to state “the grounds relied on”: SQMB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 165 at [10] per Finn, Emmett and Bennett JJ. The notice of appeal there was properly characterised as “starkly uninformative”. Nor does a notice of appeal satisfy the requirement imposed by O 52 r 13(2)(b) where it simply states that “the Honorable Judge failed to follow necessary laws applicable to me”: NAXD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 243 at [3] per North, Dowsett and Conti JJ. See also: SZMIP v Minister for Immigration and Citizenship [2009] FCA 217 at [8] to [13].

12. Although it should be noted that O 1 r 8 confers a general discretionary power upon the Court to “dispense with compliance with any of the requirements of the Rules ...”, there must always remain a rational basis upon which that discretion may properly be exercised. There is “no general test to be applied in exercising the discretion given under O 1 r 8, save that the court ought to do what justice appears to require”: Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611 at [7] per Kiefel J. See also: NABM v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 294 at [11] to [15][2002] FCAFC 294; , 124 FCR 375 at 379 to 381.
13. A mere recantation of the phrase “jurisdictional error” such as is contained in the present Notice of Appeal falls far short of properly articulating any ground of appeal. Nor is there any discretionary reason in the present appeal which would warrant dispensing with the obligation imposed upon the present Appellant to identify in some meaningful manner the error said to have been committed by the Federal Magistrate.
14. As explained during the course of oral submissions, however, it emerged that the “jurisdictional error” relied upon was a failure to take into account the fact that the Appellant claimed to be an Awami League supporter. Even so clarified, the ground is without merit. The simple fact is that the Tribunal did take that membership into account, particularly at para [30] of its reasons for decision.
15. The first Ground of Appeal is rejected.
16. The ground which apparently alleges bias or, alternatively, a failure to consider a relevant consideration, was not raised before the Federal Magistrate. Leave may be granted to raise an argument not previously advanced “if it is expedient in the interests of justice to do so”: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ.
17. But no explanation has been provided as to why the second ground was not previously raised for resolution. Moreover, and as explained during the course of oral submissions, the “unKNOWN senior Leader” referred to in the Notice of Appeal filed in this Court was a reference to an undated statement prepared by the Secretary of the Mirpur Thana Branch of the Awami League. To the extent that the Appellant seeks to contend that that statement was not taken into account, the reasons for decision of the Tribunal again contradict any such contention and explain why “little weight” was given to the letter. Those reasons thus relevantly state:

[26] With regard to a document he submitted from his party, I informed him that the Australian High Commission had been informed at a senior level that such letters were readily obtainable from the party to assist supporters [to] obtain residence overseas and that little weight could be put on them.

Even in the absence of any particulars being provided in respect to any allegation as to bias, there is no basis upon which any such contention has any prospects of success.

18. Leave to raise the second Ground of Appeal is refused. It is without merit.
19. The final purported Ground of Appeal alleges that the Tribunal made “a number of errors”. There is no further specification in the Notice of Appeal of the “errors” said to have been made. The same or a similar ground was advanced before the Federal Magistrate. However, when asked by the Federal Magistrate to identify the “errors”, the now Appellant apparently responded:

I am from Bangladesh. I came to this country to seek asylum, but I did not get it from the Tribunal. I believe they have made a mistake.

If that is the “error” or “mistake” referred to, the final Ground of Appeal is also rejected. A failure on the part of the Tribunal to accede to claims being made does not establish any jurisdictional error. Without more, all that is established is that the Tribunal has reached findings of fact and a conclusion based upon the materials taken into account. To the extent that the Appellant confined this final Ground of Appeal during oral submissions to embrace only those matters canvassed elsewhere in his appeal, the rejection of the other Grounds of Appeal also carries with it the consequence that this final Ground also has no merit.

20. An independent review of the materials available on appeal exposes no error on the part of the Tribunal. On 11 March 2009 the Tribunal forwarded to the now Appellant an invitation to attend a hearing that was to take place on 9 April 2009. A hearing did apparently take place on that date and the course of the hearing and the issues discussed were set forth in the reasons for decision of the Tribunal. The Tribunal Member was clearly unimpressed by the claims being advanced. Although the now Appellant claimed involvement in the Awami League, he was unable to tell the Tribunal Member the name of his electorate or of his local member or the Awami League candidate.
21. The dearth of material before the Tribunal was mirrored by that before the delegate. The reasons for decision of the delegate thus state in part:

In assessing the applicant’s claims for protection, I note that he has not provided any documentary or other form of evidence in support of his claims whatsoever. He provides no evidence in respect of his membership of the Awami League, or of his political activities for Ward 8 between 1993 and 2006, or of his claimed promotion to assistant general secretary of Ward 8 in recognition of his contribution to the Awami League. He provides no evidence in respect of his claimed direct and indirect confrontation of BNP extortionists in the Mirpur area or of his activities in respect of the AL election campaign which brought him to the notice of the BNP regime as a result of which his name was placed on the RAB ‘hitlist”.

Whilst I accept that it is not always possible for an applicant to provide such corroborative materials, I believe that in the circumstances of this case the applicant has had ample opportunity to have gathered such material to substantiate, at least in part, the claims which he is now making. I note that the applicant claims to have worked and resided in Papua New Guinea between January and October 2008, immediately prior to arriving in Australia on 20 October, 2008.

22. The findings of fact made by the Tribunal were findings open to it to be made on the materials available. And it is the task of the Tribunal, and not this Court, to make those findings of fact: Kopalapillai v Minister for Immigration and Multicultural Affairs [1998] FCA 1126; (1998) 86 FCR 547 at 552, 559; SZNNK v Minister for Immigration and Citizenship [2009] FCA 1386 at [20]. “It is not for this Court to reconsider the Tribunal’s factual findings”: NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 at [81], [2006] FCAFC 195; 156 FCR 419 at 440 per Young J (Gyles and Stone JJ agreeing). Jurisdictional error thus does not “comprehend errors of fact as to the merits of the case” advanced before the Tribunal nor the weight attributed to evidence going to the issues raised before the Tribunal: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10] per Gray, Tamberlin and Lander JJ.
23. No jurisdictional error is exposed simply by reason of a claimant contending that it was open to the Tribunal to have reached a different conclusion. It is simply no part of the function of either the Federal Magistrates Court or this Court on appeal to consider the factual merits of the decision of the Tribunal: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 281 to 282.
24. The appeal is dismissed. Given the absence of any real or substantive material advanced in support of the claim for a protection visa, the inescapable conclusion is that the present review and appeal process pursued by the now Appellant is a process undertaken simply to prolong his stay in Australia. Although this Court should remain vigilant to ensure that the legal rights of those claiming refugee status are fully protected, it should be equally vigilant to ensure that its own processes are not themselves the subject of abuse. The factual issues needing to be addressed were clearly identified from at least the date of the delegate’s decision. The Appellant took no real steps before the Tribunal to address the deficiency in the factual basis upon which his claims were to be advanced.
25. There is no reason why the Appellant should not pay the costs of the First Respondent.

ORDERS

26. The Orders of the Court are:
    1. The appeal is dismissed.
    2. The Appellant is to pay the costs of the First Respondent.
       

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:

Dated: 22 February 2010