SZBML v Minister for Immigration and Multicultural and Indigenous Affairs

The decision of the Federal Magistrate 7 In concluding that s 477(1A) of the Act applied to the application, Driver FM held that the Tribunal decision is a privative clause decision. In coming to that conclusion, his Honour followed the decision of Selway J for the following reasons: 'While I am not strictly bound by the decision of the Federal Court, I should follow it, unless there is a good reason not to. The applicant has not advanced any reason for me not to follow the decision of Selway J. In his oral submissions the applicant has, in effect, asked the Court to show some mercy to him. He has referred to his difficult financial and personal circumstances. He is dissatisfied with his legal representation before the Federal Court. However, he has not sought leave to appeal against the decision of Selway J or otherwise to challenge it. Nothing said by the applicant gives me any cause to believe that I would reach any different decision than that reached by Selway J. The effect of the decision in Selway J is that the decision of the RRT is a privative clause decision.'

The application for leave to appeal 8 The applicant appeared before me unrepresented with the assistance of an interpreter. A number of matters were raised by the applicant which were not relevant to this application before me, including his present personal circumstances, the current political situation in Sri Lanka and its asserted effect on him if he were to return. The applicant also claimed that he had personally formed the impression in the hearing before the Federal Magistrate that only the time limit was in issue and that the substantive questions of the decision of Selway J and any jurisdictional error on the part of the Tribunal were not to be addressed. The applicant provided no evidence in support of this assertion or the formation of such an impression, nor did he point to any action or words on the part of the Federal Magistrate to support the suggestion that such a personal conclusion related in any way to the conduct of that hearing. Indeed, he informed me, when asked, that he had put forward all relevant matters to the Federal Magistrate and had also made submissions on 'a humanitarian point of view'. On the other hand, he also asserted that there were matters that he did not put before the Federal Magistrate. He conceded that he was given the opportunity to discuss the decisions of Selway J and the Tribunal but said that he was not able to put matters before the Federal Magistrate because of personal difficulties and the fact that he was stressed. 9 In the hearing before me, I invited the applicant to make submissions as to why the decision of Selway J was wrong, why the Federal Magistrate erred in following the decision of Selway J or why he claims the Tribunal committed error. Apart from a general reference to his written submissions, the applicant identified two matters. First, he said that although the Tribunal referred to relocation, it did not consider that relocation would cause him financial hardship. Secondly, he submitted that pursuant to s 424A of the Act, the Tribunal decision was infected with error. He gave no particulars of this ground. 10 The applicant did refer to some alleged problems in giving sufficient instructions to the lawyer who appeared for him before Selway J but there was no evidence and, in any event, there was no suggestion that this affected his Honour's decision.

The Tribunal's decision 11 The Tribunal considered the applicant's claims that he had a well founded fear of being persecuted for reason of his political opinion. The Tribunal assessed the applicant's claims against a backdrop of independent country information. The Tribunal doubted the genuineness of the applicant's claims and found that 'the applicant has exaggerated his claims and is not a credible witness, and I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention'. 12 Selway J described the reasoning of the Tribunal as "compelling". His Honour also observed at [12]: '[The conclusion of the Tribunal] seems to me to have been obvious on the material before the Tribunal. I cannot find that there has been jurisdictional error. I cannot see that it is arguable that there has been one'.

Consideration 13 The problem with the first matter raised by the applicant, that the Tribunal did not consider the hardship of relocation, is that the Tribunal made no comment about relocation. Having rejected the applicant's claims, relocation was not relevant. As submitted by Ms Rayment for the respondent, it was a straightforward case of credibility. The Tribunal expressed its reason for not accepting the applicant in the strongest terms. The second matter, in respect to s 424A of the Act, has not been particularised or identified in any meaningful way. 14 Selway J considered whether there had been a breach of the rules of procedural fairness and concluded that this aspect of the applicant's case could not succeed. Nothing has been put by the applicant in his written submissions or in his presentation to me to cast any doubt on his Honour's conclusion that there was no jurisdictional error on the part of the Tribunal. None is apparent. 15 No error has been demonstrated on the part of the Federal Magistrate in following the decision of Selway J nor was any reason advanced as to why that decision was wrong. Accordingly, the Federal Magistrate was not in error in finding that he had no jurisdiction, as the application before him was filed after the time prescribed in s 477(1A) of the Act. 16 I conclude that the decision of Driver FM is not attended by any doubt. No injustice has been demonstrated if leave to appeal is refused. The proposed appeal does not possess any, let alone sufficient, prospects of success. In my opinion, leave to appeal ought not be granted to the applicant. 17 The respondent seeks an order for indemnity costs. The evidence is that the respondent's costs are in excess of $2000. The respondent seeks costs in the amount of $2000. It seems to me, in view of the history of this matter, the fact that no matter of substance was raised before me and the fact that the grounds raised were either inapplicable or not particularised, such an order is appropriate. 18 The respondent also seeks an order in the following terms: 'No further application by the applicant to review the decision of the Tribunal dated 18 June 2002 shall be accepted for filing, except by leave of the Court.' With regard to the history of this matter, it is appropriate to make that order. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate: Dated: 14 September 2004 Applicant appeared in person assisted by an interpreter