SZLZM v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 The Appellant in this proceeding is a citizen of China and was born in 1970. 2 He arrived in Australia on 25 March 2006 on a false Japanese passport and applied to the then Minister for Immigration and Multicultural Affairs for a Protection (Class XA) Visa on 8 May 2006. A delegate of the Minister refused to grant the visa on 21 July 2006 and he applied to the Refugee Review Tribunal for review on 17 August 2006. 3 The Tribunal affirmed the delegate's decision by way of a decision signed on 10 January 2008. On 18 June 2008 the Federal Magistrates Court dismissed an application seeking to review the decision of the Tribunal: SZLZM v Minister for Immigration & Citizenship [2008] FMCA 887. 4 The Appellant now appeals to this Court. He appeared today unrepresented, albeit with the benefit of an interpreter. He read to the Court (via his interpreter) a detailed statement in support of his appeal. That statement fully addressed the issues sought to be canvassed. Although he maintained that a copy of the Respondent Minister's submissions had only been received by him on 13 August 2008, he accepted that his statement made orally today fully set forth his case. Any further opportunity to respond would be for the purpose of reducing to writing the statement made orally. Such a further opportunity was not considered necessary. The interpreter experienced no difficulty in translating the Appellant's oral contentions. 5 Although the present proceeding is an appeal from the decision of the Federal Magistrates Court, the Grounds of Appeal as filed in this Court do not attempt to identify any error made by the learned Federal Magistrate. Those Grounds merely set forth the errors alleged to have been committed by the Tribunal. 6 This deficiency in the Notice of Appeal is not a mere matter of form. 7 Division 2 of Part 8 of the Migration Act 1958 (Cth) provides for the manner in which decisions may be reviewed by the Federal Magistrates Court, the Federal Court and the High Court. Section 476 provides for the jurisdiction of the Federal Magistrates Court. Section 476(2)(a) and (d), it has recently been held, are not invalid because they oblige the High Court to exercise exclusively and without remitter the jurisdiction conferred by s 75(v) of the Constitution with respect to certain decisions of the Minister: MZXOT v Minister for Immigration & Citizenship [2008] HCA 28. Section 476A provides for the limited original jurisdiction to be entertained by this Court: eg, Assad v Minister for Immigration & Citizenship [2008] FCA 1039; La Bara v Minister for Immigration & Citizenship [2008] FCA 785 at [3]; Shuster v Minister for Immigration and Citizenship [2008] FCA 215 at [6]-[7], 167 FCR 186 at 188. The appellate jurisdiction of this Court is relevantly that conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). That appellate jurisdiction may be exercised by a single Judge of this Court: s 25(1AA)(a). 8 The jurisdiction expressly vested by the legislature upon the Federal Magistrates Court cannot be exercised by this Court; this Court simply does not have vested in it the jurisdiction conferred by s 476 upon the Federal Magistrates Court. This Court only has the limited original jurisdiction conferred by s 476A of the 1958 Act and, relevantly, the appellate jurisdiction thereafter conferred by s 24(1)(d) of the 1976 Act to entertain an appeal from the Federal Magistrates Court. 9 The Notice of Appeal identifies no error committed by the Federal Magistrates Court and may be dismissed for that reason. The appellate jurisdiction of this Court should not be exercised so as to permit an applicant a second opportunity to impugn a decision of the Tribunal. No such original jurisdiction is conferred upon this Court. 10 Notwithstanding the deficiency in the content of the Notice of Appeal, it nevertheless remains clear that the Appellant sought to invoke the appellate jurisdiction of this Court and not its original jurisdiction. Whatever other deficiencies there may be in his Notice of Appeal, that Notice does state (without alteration) that "the appellant appeals from the whole of the judgment of the Federal Magistrate Court given on 18.6.2008 at Sydney". In some circumstances, it may be accepted, it is not appropriate for this Court to deal with an application before it solely upon the basis of "procedural errors committed by an unrepresented applicant": eg, Thang Gia Uy Vo v Minister for Immigration & Citizenship [2007] FCA 1599 at [12], 101 ALD 57 at 59. 11 In the present appeal no submission was advanced on behalf of the Respondent Minister that the appeal should be dismissed by reason of the failure of the Appellant to identify any error alleged to have been committed by the learned Federal Magistrate; indeed, the Minister's written submissions addressed the substance of each of the three purported Grounds of Appeal. 12 But, even if the Grounds of Appeal be construed as an identification of the errors which were said to have been committed by the Tribunal, and an implicit contention that the Federal Magistrate erred in not concluding that there were such errors, no different conclusion - it should be noted - would have been reached and the appeal would have been dismissed. 13 The first purported Ground of Appeal, as it is expressed in the Notice of Appeal, states as follows: The Refugee Review Tribunal has erred in laws during the course of review of my application for protection visa. The Tribunal re-enacted the so called "the applicant's movements from his arrival in Tokyo". The Tribunal has abused it power to take this course of action during the hearing because it had added chaotic confusion to me. It also did not take into consideration of my nervousness during the hearing. I had told the tribunal many times during the hearing that I did not know Japanese, yet the tribunal still "re-enacted" and then, it concluded that I did not contradict the details of the reenactment - Last paragraph on page 189 of the green book - Annexure A The substance of this Ground is understood to be a contention that the manner in which the Tribunal proceeded caused the now Appellant to become confused and a contention that the Tribunal failed to take into account the effect that had upon him, including his "nervousness". 14 This Ground should be rejected. It was (most probably) not raised before the Federal Magistrates Court and no reason has been exposed as to why it should now be entertained. In those circumstances where this Court has a discretion to permit a new ground to be raised on appeal, there should generally be an adequate explanation for not raising the ground before the Federal Magistrates Court (SZIBR v Minister for Immigration & Citizenship [2008] FCA 502 at [38]-[41]) and leave should only be granted if it is expedient in the interests of justice to do so (VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46]-[48]). 15 The Ground could potentially have been cast in terms of a contention that the Tribunal denied the Appellant procedural fairness. But, even if the Ground were to be so construed, there is no evidence to support such a contention. The only relevant evidence before the Federal Magistrates Court and this Court are the reasons for decision of the Tribunal. There was, for example, no transcript of the proceedings before the Tribunal; nor any other evidence to support the Ground. 16 The uncertainty as to whether or not this Ground was in fact raised before the Federal Magistrates Court is occasioned by the imprecision in the terms employed in the Notice of Appeal. The degree of precision with which Grounds of Appeal may be drafted by a legal practitioner is not to be expected of an unrepresented appellant. Some degree of latitude must thus be extended to unrepresented parties and an attempt made to consider the substance of a grievance sought to be pursued, rather than the form in which that grievance may be expressed. If the first Ground of Appeal is thus to be construed as attempting to convey error arising out of the Tribunal's consideration of his "movements from his arrival in Tokyo", as opposed to the personal effect of the hearing upon the Appellant, such matters can properly be considered as also arising under the second purported Ground of Appeal. 17 In the absence of any reason being advanced as to why this Ground was not pursued before the Federal Magistrates Court, it should not now be entertained. No injustice is occasioned to the Appellant by such a conclusion. It is either a Ground without substance or a Ground raising for consideration matters which can be considered when resolving another Ground. 18 The submission advanced on behalf of the Respondent Minister was that this first Ground should not, as a matter if discretion, be permitted to be raised where it was not raised before the Federal Magistrates Court. No submission was advanced that this Court did not have jurisdiction to entertain such a Ground. In circumstances where a notice of appeal does in fact raise issues which can properly be pursued on appeal, it may be that this Court has jurisdiction to entertain other grounds even though such grounds would otherwise fall within the jurisdiction vested by the Commonwealth legislature by s 476 in the Federal Magistrates Court. In the absence of argument, it is neither necessary nor prudent to resolve this question as to jurisdiction. Reservation, however, is expressed as to the jurisdiction of this Court to entertain on appeal grounds entrusted to the Federal Magistrates Court, but not pursued before that Court and instead raised for the first time on appeal. That difficulty may most clearly present itself if a case were ever to arise in which none of the Grounds of Appeal related to issues raised before the Federal Magistrates Court. 19 The first Ground would, accordingly, have been dismissed - even if entertained. 20 The second purported Ground of Appeal, as it is expressed in the Notice of Appeal, states as follows: The Tribunal has all along been using its Australian mentality to assume what should have been done in China during the exit procedure. It used the report of the Australian Department of Foreign Affairs to illustrate the procedure of how it should have occurred when I left Dalian of China to Japan. However, I believe that the Tribunal has again abused its power of making such assumption because it was the procedure adopted by the Chinese officials. In particular, in my case, I passed through the Chinese border with somebody's assistance. The Tribunal failed to look at the reality of the possibility and failed to apply the test to my danger for returning if what my claims were true and correct. Therefore, I believe that the Tribunal has failed to carry out its duties fairly and justly. 21 The Tribunal attached importance to the arrival in Australia of the Appellant using a Japanese passport. That passport did not contain any Chinese exit stamp. An available inference was that the Appellant used another passport when exiting China, a passport not disclosed to the Department or the Tribunal. Adverse inferences of credit were thus open to the Tribunal and were in fact made by the Tribunal. Its "Findings and Reasons" thus state in part as follows: The Tribunal has examined the method of the applicant's arrival in Australia and his use of a false Japanese passport (according to the Document Examination Unit (DEU) of the Department). The Tribunal has made an extensive investigation of the applicant's documentation and method of arrival in Australia relying on information from the DEU and pursuant to s.424A of the Act. … The Tribunal has deduced from Country Information that if the applicant had used the Japanese passport (as he has adamantly insisted) then it would have contained the necessary China (PRC) exit stamp - which was not, in fact, present on the document. There is no logical reason why the applicant would not have had an official exit stamp on the false Japanese passport if he used it as claimed. He has adamantly insisted that he did not exit China (PRC) using a China (PRC) passport. He claimed that to depart China (PRC) using a China (PRC) passport in his own name would have been dangerous because of his prior adverse history with the PSB. The Country Information above confirms his observation. The Tribunal finds that when juxtaposed with the Country Information the applicant's explanation to the Tribunal of his entry into and departure from Dalian airport is unconvincing and not credible. The China (PRC) law and protocol indicates that he would have been required to enter a separate queue to that used by China (PRC) citizens and then he would have faced a number of other protocols. 22 These were findings of fact open to the Tribunal. Contrary to the contention of the Appellant that the Tribunal was "using its Australian mentality to assume what should have been done", the Tribunal repeatedly sought the assistance of the Appellant and his submissions in respect to the manner in which he was able to leave China. This subject matter was raised during the course of the Tribunal hearing, which the Appellant attended, on 18 October 2006 and again in a letter written pursuant to s 424A on 4 May 2007. The now Appellant responded to that letter by way of a letter received on 18 May 2007. In making its findings it is considered that the Tribunal based its conclusions upon the oral and written responses provided. No jurisdictional error can be discerned in the Tribunal making the findings it did. 23 The second Ground of Appeal would also thus have been dismissed. 24 The third purported Ground of Appeal, as it is expressed in the Notice of Appeal, states as follows: The Tribunal fails to act independently to assess my review application because it has referred to the same materials that have been produced by the Department of Immigration and in fact, it acted like a "goal keeper" taking a unilateral view in line with the Department of Immigration. The Tribunal failed to keep an open mind to accept a version of explanation and applied the necessary tests as what if these claims were true. 25 There is simply no evidence to support this Ground. All that was relevantly before the Federal Magistrates Court were the reasons for decision of the Tribunal. Those reasons expose a careful consideration of the evidence placed before the Tribunal and adverse findings of credit amply supported by the findings made. 26 The third Ground of Appeal would also thus have been rejected. 27 The reasons for decision of the Federal Magistrates Court, it should finally be noted, have been considered - irrespective of the terms of the Notice of Appeal. No appellable error can independently be discerned in those reasons. 28 The appeal thus must be dismissed with costs.