SZMAM v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT BUCHANAN J: 1 The applicant is a citizen of India who arrived in Australia on 11 May 2007 and applied for a protection (Class XA) visa on 14 May 2007. A delegate of the first respondent refused the application on 29 June 2007. On 23 July 2007 the applicant applied to the Refugee Review Tribunal ('the RRT') for review of the delegate's decision. The appellant was invited to a hearing before the RRT on 5 October 2007. After the hearing, on 10 October 2007, the RRT wrote to the applicant drawing to his attention contradictions and inconsistencies between what was stated in his application for a temporary resident's visa, under which he came to Australia, his protection visa application, a statement provided to the RRT and what he stated at the hearing before the RRT. 2 The decision of the RRT which was handed down on 19 February 2008 records that the applicant came in person to the RRT on 7 December 2007 claiming not to have received the letter of 20 October 2007. The letter was thereupon reissued, dated 7 December 2007 and handed to the applicant. He was given a further period to respond to it but failed to provide any comments. 3 From the RRT decision, although there is a detailed discussion of the various versions of events advanced by the applicant, it is plain that the RRT did not believe him. For example, it said: '60. The Tribunal did not find the applicant to be a credible witness for the reasons set out below. In particular there are a number of inconsistencies and contradictions in the statements made by the applicant, both in writing and orally, to the Department and the Tribunal which are of such a magnitude that they indicate that the applicant did not suffer the harm he claimed he suffered in India.' 4 Later, after discussing some inconsistencies in detail the RRT said: '73. On the evidence and for the above reasons, particularly all of the above inconsistent and contradictory statements and claims, the Tribunal finds that the applicant is not a truthful witness and his statements both to the Department and to the Tribunal lack credibility.' 5 A conclusion that the applicant was not credible and that the RRT, therefore, did not accept the version of events advanced as the justification for the grant of a protection visa is not open to judicial review unless the RRT committed some jurisdictional error in its decision or in its processes. 6 On 10 March 2008 the applicant filed an application for judicial review in the Federal Magistrates Court of Australia ('the FMCA') in which the grounds of the application were stated as follows: '1. That the decision of the RRT was effected by judictional [sic] error in that the Tribunal did not take into consideration of "integers" central to the applicant claims 2. The Tribunal there by failed to carry its review function and to exercise its jurisdictions.' 7 In a decision given on 27 May 2008 (SZMAM v Minister for Immigration and Anor [2008] FMCA 726) the FMCA dismissed the application for judicial review under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 on the ground that it did not raise an arguable case for the relief claimed. The FMCA said, after referring to the two grounds above: '8. In my opinion there is no arguable substance shown for either of these grounds. They both lack meaningful particulars, and, for myself, I am unable to identify any argument which has any prospect of revealing a jurisdictional error. 9. I consider that the Tribunal thoroughly identified all the "integers" of the applicant's claims, and I can see no arguable respect in which it failed to carry out its review function. In my opinion, the Tribunal's decision was clearly open to it on the material before it. 10. The applicant today had no argument to present to me to show jurisdictional error. He sought more time to present more documents in support of his refugee claims, but this could not allow this Court to give him the relief he seeks. 11. In my opinion the application does not raise an arguable case for the relief claimed, and it is appropriate to dismiss it under r.44.12(1)(a).' 8 Rule 44.12(2) of the Federal Magistrates Court Rules 2001 provides that dismissal of an application to show cause pursuant to r 44.12(1)(a) is an interlocutory decision (see also Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [17] and SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543 at [6] and the cases there cited). Leave to appeal against the judgment of the FMCA is required. 9 The applicant sought such leave to appeal on 11 June 2008. The grounds of appeal upon which he proposed to rely were stated simply as follows: '1. Jurisdictional Error made by the RRT 2. Tribunal Breached Procedures Required By Act 3. Natural Justice.' 10 It is unlikely that these grounds refer to any alleged error on the part of the FMCA. They refer, either explicitly or by inference, to the decision of the RRT. No jurisdictional error is thereby identified. 11 The applicant had not, as directed, filed any written submissions. At the hearing of the appeal he responded to an invitation to make an oral submission with a short statement to the effect that he wanted a chance to present a proper case to the RRT as he had, on each previous occasion (i.e. before the RRT and the FMCA) not been aware of the requirements. In short, he wanted to start again. 12 In my view, the grant of leave to appeal would be a futility. The decision of the FMCA rejecting the grounds advanced in support of the application for judicial review was clearly correct. There is no basis upon which to accede to the applicant's request to be allowed to put his case again to the RRT. The application for leave to appeal will therefore be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.