SBAD v Minister for Immigration and Multicultural

REASONS FOR JUDGMENT THE COURT: 1 The Notice of Appeal in this matter does no more than indicate that the appellant's application to the Federal Court was dismissed. No ground of appeal is stated and in the hearing before us the appellant did not identify any appellable error by the primary judge: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd (2001) 117 FCR 424 at [11]ff. 2 In his oral submissions he sought to demonstrate that a significant number of factual mistakes and incorrect fact findings were made, primarily by the original case officer but also by the Refugee Review Tribunal and by the primary judge. He referred as well to changed circumstances in Iraq and Jordan since the decision of the Tribunal and invited us to re-examine the matter in that light. Whatever may be the substance in the complaints on factual matters raised by the appellant on the reasonableness of his assertions as to present conditions in the two countries, these, simply, are not matters which this Court has jurisdiction to examine. 3 The appellant was represented by senior counsel at the hearing of the decision appealed from. He has represented himself on the appeal. For this reason we have considered the primary judge's decision carefully ourselves to determine whether any error is disclosed. None is apparent. There was only one matter to which objection may be able to be taken. This relates to the correctness of the decision of this Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1998) 80 FCR 543 which was relied upon by the primary judge. As was accepted by a majority of the Full Court in NAGV v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 144, reconsideration of Thiyagarajah could only be undertaken by the High Court and unless and until that occurs it is to be applied in this Court. 4 Put briefly the appellant was an unsuccessful applicant for a protection visa under the Migration Act 1958 (Cth). He is an Iraqi national who, after marrying a Jordanian in Jordan, came to Australia with his wife and child. The Refugee Review Tribunal rejected his application for the following reasons: 5 1. As the history the appellant claimed to have had in Iraq was not accepted, he was found not to have had a well founded fear of persecution for a Convention reason at the time he left Iraq. 6 2. Having married a Jordanian citizen and having lived there for four years, he could obtain residency again in Jordan provided he could obtain a temporary travel document from the Iraqi authorities in Australia to travel to Jordan. 7 3. There was no reason why the Iraqi authorities would not issue him with a passport. Alternatively he could be issued with a Certificate of Identity from Australia which would enable him to travel to Jordan. 8 4. There was no real chance that he would be refouled to Iraq. 9 The challenges made to the Tribunal's decision raised issues of lack of procedural fairness; bias; excess of jurisdiction by not having regard to certain country information; and failure to comply with s 424A. We need not outline these matters in any detail. They related in significant degree to an alleged failure to disclose and to have taken account of particular potentially adverse information which, as his Honour correctly found, formed no part of, and was irrelevant to, the Tribunal's decision. These claims were examined painstakingly by his Honour. We can see no error in his conclusions that the failure to disclose this information evidenced a lack of procedural fairness, bias or a failure to comply with s 424A of the Act. 10 The primary judge considered and rejected several claims that the appellant was misled by what transpired at the hearing. Likewise a Muin claim was advanced but was rejected for want of any evidence of reliance upon any statement said to have been made by the Tribunal: see Muin v Refugee Review Tribunal (2002) 190 ALR 601. These conclusions are unexceptionable. 11 His Honour equally rejected a claim of lack of procedural fairness which was said to have arisen from a failure by the Tribunal to refer the appellant to particular country information on which it relied. The Tribunal had, in the primary judge's view, put the appellant on notice about the issues which it decided adversely to him and a proper opportunity to respond was given. We see no reason to disagree with this conclusion. 12 Finally, his Honour rejected that the Tribunal had committed an excess of jurisdiction if it did not have regard (which was not accepted to be the case) to certain independent country information to which the delegate had regard. We agree with this conclusion. 13 As we can discern no error in the primary judge's careful decision, the appeal will be dismissed with costs. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Carr, Finn & Sundberg JJ.