SZLST v Minister for Immigration & Citizenship [2008] FCA 799 (20 May 2008)

Last Updated: 2 June 2008

FEDERAL COURT OF AUSTRALIA

SZLST v Minister for Immigration & Citizenship [2008] FCA 799

SZLST v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 435 OF 2008

JESSUP J
20 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 435 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLST Appellant

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

JUDGE:	JESSUP J
DATE OF ORDER:	20 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the costs of the first respondent.









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	NSD 435 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLST Appellant

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

JUDGE:	JESSUP J
DATE:	20 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a judgment of the Federal Magistrates Court given on 17 March 2008 dismissing an application by the appellant for an order that the respondents show cause why a remedy should not be granted under s 476 of the Migration Act 1958 (Cth) ("the Act") in relation to a decision by the Refugee Review Tribunal ("the Tribunal"), signed on 25 October 2007 and handed down on 13 November 2007. In that decision, the Tribunal affirmed the decision of a delegate of the Minister not to grant a Protection (Class XA) Visa to the appellant pursuant to the Act.

2 The appellant arrived in Australia on 5 April 2007 on a visitor visa. On 16 April 2007, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department"). The appellant claims to belong to a Muslim community, and to have been the subject of threats and demands for the payment of money by members of the Shiv Sena political party. He also claimed that he could not seek the assistance of police because he feared that he would be tortured.

3 In his amended application in the Federal Magistrates Court, the appellant relied upon the following grounds:

(1) The Refugee Review Tribunal failed to consider my claim as a whole:

Particulars:

A. The Tribunal failed to consider my claim as a whole that:

(i) The Tribunal found me to be a poor witness and much of my testimony unpersuasive;

(2) The Refugee Review Tribunal made the decision in bad faith:

Particulars:

A. The Tribunal made the decision in bad faith by making the following comment that:

(i) The Tribunal finds him to be an unreliable witness with poor credibility.

(3) The Refugee Review Tribunal acted in excess of its jurisdiction:

Particulars:

A. the Tribunal acted in excess of its jurisdiction by making the following comment that:

(i) The Tribunal finds that the applicant has not been discriminated against on the basis of his race, religion, nationality, political opinion or membership of a particular social group or that he would face such discrimination on the return to India.

4 In her reasons for judgment handed down on 17 March 2008, the Federal Magistrate dealt with each of these grounds. In relation to ground 1, her Honour described that as no more than a disagreement with the findings and conclusions of the Tribunal. She pointed out that adverse credibility findings were open to the Tribunal on the evidence and material before it and for which it provided its reasons.

5 In relation to ground 2, her Honour observed, correctly, in my view, that the allegation of bad faith was a serious one which ought to have been properly particularised. She considered the whole of the Tribunal’s reasons and appeared to have been in no doubt that the appellant had comprehensively failed either to particularise or to make good this allegation.

6 In relation to ground 3, her Honour expressed the opinion, with which I also agree, that the ground appeared to be no more than a disagreement with the Tribunal’s conclusion following its application of the law to the facts as it found them to be. In the circumstances, each of the appellant’s grounds was rejected by the Federal Magistrate and his application was dismissed.

7 In his Notice of Appeal in this court, the appellant has not referred at all to the judgment below, nor made any attempt to identify error in the Federal Magistrate’s reasons. The grounds contained in his Notice of Appeal are identical to the grounds of review originally contained in his application to the Federal Magistrates Court.

8 He supported those grounds today with a written outline of submissions upon which he did not choose to elaborate in his oral submissions in court. As with the Notice of Appeal, the appellant’s outline speaks as though there had never been a proceeding before the Federal Magistrate. It is concerned wholly with the decision of the Tribunal, and effectively invites the court to embark upon precisely the same first instance exercise as was the task of the Federal Magistrate, and in relation to precisely the same questions which were disposed of by her Honour. I am not inclined to accept such an invitation. The function of this court is not to consider, at first instance, whether there may have been a want or excess of jurisdiction at the level of the Tribunal. This is an appellate court with respect to the Federal Magistrates Court. The Federal Magistrates Court has the important and, at times, onerous responsibility of considering, at first instance, whether there have been any jurisdictional errors in the way the Tribunal dealt with and disposed of a particular application. It is not the role of this court to repeat such an exercise. The appellant made no attempt to demonstrate error on the part of the Federal Magistrate and, for my part, I am unable to discern any error in her Honour’s reasons.

9 For the above reasons, I propose to dismiss the appeal.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:

Dated: 29 May 2008

Solicitor for the First Appellant:	The appellant appeared in person.
Counsel for the First Respondent:	Mr B O'Donnell
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	20 May 2008
Date of Judgment:	20 May 2008