SZAKU v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an appeal from the orders and reasons for judgment of Federal Magistrate Driver made and given on 24 March 2004 and 31 March 2004 respectively, whereby his Honour dismissed the appellant's application purportedly brought pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of the decision of the Refugee Review Tribunal ('the Tribunal') made on 11 March 2003 and handed down on 3 April 2003. The Tribunal decision had affirmed the decision of the Minister's delegate made on 10 May 2001 not to grant the appellant a protection visa. 2 As in the decision of Driver FM, in terms of recitation of background facts and circumstances bearing upon the current appeal, I repeat and adopt paragraphs 3 and 4 of the written submissions of counsel for the respondent filed in chambers on 5 July 2004, being essentially the same as those referred to in paragraph [1] of his Honour's reasons: 'The Applicant claimed to fear persecution for reason of his political opinion in Bangladesh. He claimed to be a leading member of the Freedom Party (FP), and to have been assaulted in January 2001 and had false charges brought against him by members of the rival Awami League. He claimed to have then gone into hiding. He claimed to have been a member of a drama group since 2000, and was able to obtain a visa to come to Australia for this reason. The Tribunal found that the Applicant was not credible, and had fabricated his claims. The Tribunal noted that he demonstrated very little knowledge of the FP at the hearing, and found that the Applicant's claim to be a member of the FP had been fabricated. Similarly the Tribunal regarded the Applicant's claims as to being wanted by the Bangladeshi authorities as inconsistent with his ability to leave Bangladesh legally on his own passport.' 3 The notice of appeal filed 7 April 2004 contained the following purported grounds (read literally): '2. The single Judge of the Federal Magistrates Court in his Honors Judgment delivered on the 24 March 2004 failed to find error of law, Jurisdictional error Procedural fairness and relief Under Section 39B of the Judiciary Act 1903. 3. The grounds and relief is very much similar with the recent High Court Judgment - Muin v refugee review Tribunal, Lie v Refugee review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: Immigration - Refugee - Protection Visa - Decision by Minister to refuse application for visa - review of decision by Refugee Review Tribunal - Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Registrar for purpose of review - Nature and extent of Obligation - Migration Act 1958(Cth), ss 148(3), 424(1). 4. The Honorable trial judge erred in considering the real state of affairs of the applicant, the applicant feared harm. And also the present ruling government fail to protect civilian life, which is a worldwide concern today. Honorable Trial judge did not take it into consideration. 5. S474 of Migration Act is ineffective as per the recent two decisions of the High court of Australia. Honorable trial judge did not consider this in favour of me. 6. The applicant will face persecution if she returns to his country of origin as there are significant level of violation of human rights, this was not considered by honourable judge. 7. Recent High Court judgement: Plaintiff s157/2002 v Commonwealth of Australia [2003] HCA (14 February 2003). 8. Recent Federal Court of Australia judgment: SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74 (14 February 2003).' 4 After both the applicant and counsel for the respondent indicated they relied primarily on their written submissions, I dismissed the appeal with a view to publishing reasons for judgment in due course. Those reasons are now set out below. 5 It is readily apparent that paragraphs 2, 3, 7 and 8 of the notice of appeal do not specify any viable grounds of review, but merely re-state the decision appealed from, and refer to case law in general terms without in any way purporting to apply the same to the circumstances and matters set out in the reasons for judgment of Driver FM below, or otherwise to explain the relevance of the same to any alleged circumstances of the appellant. None of that material satisfies the requirements of Order 52 rule 13(2)(b) of the Federal Court Rules 1976 (Cth), which require an appellant to state 'briefly, but specifically the grounds relied upon in support of the appeal'. 6 Moreover the general assertions the subject of grounds 4, 5 and 6 do not establish any viable basis for impugning the reasons for judgment below. In short, as his Honour indicated, the Tribunal had found the appellant's claims to have been fabricated, and that he did not give credible evidence. In this regard, I adopt paragraph 5 of the concisely framed written submissions of the respondent's counsel filed in chambers on 5 July 2004, and paragraphs 6 and 7 of his submissions in the Federal Magistrate's Court (filed in chambers on 19 March 2004) which, along with the former, are reproduced in paragraph [6] of Driver FM's reasons below: 'It is apparent that the Appellant was unsuccessful because of the view the Tribunal took of the facts, in particular its finding that the applicant was not credible and his claims fabricated. Such findings are matters of fact for the Tribunal par excellence: Re Minister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407 (HCA/McHugh J) at [67]. So long as the Tribunal's credibility findings were open to it, no error is demonstrated in such conclusions: Kopalapillai v Minister for Immigration (1998) 86 FCR 547 (FC) at 558-559; W148/00A v Minister for Immigration (2001) 185 ALR 703 (FCA/FC) at [64-69] per Tamberlin and R D Nicholson JJ. The Tribunal's findings were open for the reasons it gives. The Court cannot review the merits of the Tribunal's decision: Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 272, and there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Abebe v Commonwealth (1999) 197 CLR 510 at [137]. The application does not properly particularise any error in the [Tribunal's] decision. Improperly, an unparticularised allegation of bad faith is made. There is no basis for any of the assertions in the application, including the assertion that the applicant was denied natural justice, and in the absence of particulars the application raises no case to answer. As there is no arguable jurisdictional error in the [Tribunal's] decision it is strictly unnecessary to discuss the effect of Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 or s 474 of the Migration Act 1958 (Cth) (the Act). However the distinction between jurisdictional and non-jurisdictional errors remains: Linett v McIntyre (2002) 117 FCR 189 (FC) at [5], [30-35], [86-87]; Re Minister for Immigration; Ex parte Lam (2003) 195 ALR 502 at [77]; Re Minister for Immigration; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [59]. The [Tribunal] was plainly addressing the right question, and the applicant's complaints can at most concern the weight given to evidence before it, which cannot be a jurisdictional error: Linett. As there is no jurisdictional error in the [Tribunal's] decision it follows that it is a "privative clause decision" within s.474 of the Act. 7 In the result of course, Driver FM held that no jurisdictional error had been established on the basis of the application made to the Court, and duly dismissed the same. I agree with his Honour and adopt paragraphs 6 and 7 of counsel for the respondent's written submissions before me: 'Before Driver FM the Appellant did not properly particularise any error in the Tribunal's decision: [4-5]. His Honour inferred that the application had been brought to extend the Appellant's stay in Australia, and ordered that he pay the Respondent's costs on an indemnity basis: [9]. The Notice of Appeal does not properly particularise any error in His Honour's decision, and appears to seek merits review.' 8 Prior to the hearing, the appellant filed with the registry purported written submissions in support of the appeal, consisting of some 25 pages, prepared by a person having an evidently confused and inadequate knowledge of migration law, and in any event having an entire absence of understanding of what may constitute viable grounds of appeal open to be presented in the context of dismissed refugee claims, such as those here supposedly involved. As was the case before Driver FM, who observed that the appellant's written submissions (as then applicant) before him were 'no more than a farrago of snippets of information from previous cases', those before me amounted to convoluted assertions as to the conduct of his review application made to the Tribunal, together with a restatement of the case which he put or might have put to the delegate of the Minister and/or to the Tribunal, as though the function of the Federal Magistrate on an application for review, and of this Court on appeal from the Federal Magistrate, was to re-assess the merits or otherwise the claims on his part to be a refugee. 9 Thereafter these written submissions contained a purported treatise as to what may constitute jurisdictional errors generally by a federal magistrate and subsequently by this court on an appeal, followed by an apparent extract from 'The United States State Department Country Reports on Human Rights Practices for 2002, released March 2003'. No realistic endeavour was made to apply any principles purportedly set out in that material in relation to any issues said to arise on this appeal. I therefore reject the appellant's submissions and adopt those of counsel for the respondent, as set out in [6] and [7] above. 10 The orders made by Driver FM below included an order made on an indemnity basis, his Honour stating at [9] in that regard: 'On the question of costs, [counsel for the respondent] has sought an order for indemnity costs fixed in the sum of $4,500. I accept that costs of that order would have been reasonably and necessarily incurred on behalf of the Minister in this matter. In addition, I accept that an indemnity costs order is called for for essentially the same reasons as I expressed in SZAJS and Minister for Immigration. This application is an abuse of process. The application discloses no cause of action and orders of the Court seeking to extract an application that did disclose a cause of action were not complied with. The applicant's written submissions did not advance his position at all. I surmise that this application was made for the purpose of extending the applicant's stay in Australia. For all of those reasons I will order that the applicant pay the Minister's costs and disbursements of and incidental to the application, which I fix in the sum of $4,500. An application for indemnity costs has also been made to me. I endorse his Honour's comments in that regard and add the observation that the fact an appeal has been lodged from such an emphatic finding below at least borders on abuse of process. I therefore order the appellant to pay to the Minister indemnity costs fixed in the said sum of $3.000.00. 11 As was done by Driver FM, I will also order that a copy of these orders and reasons be forwarded to the Migration Agents Registration Authority. I was informed by counsel for the Minister that written submissions in an identical form to those presented by the appellant today were presented in another appeal in which he was engaged very recently. The preparation of the documentation placed before me by the appellant therefore indicates an abuse of process by a person likely to have at least a limited knowledge of case authority.