SBAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 67

FEDERAL COURT OF AUSTRALIA

SBAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 67 SBAJ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S228 of 2002 MADGWICK, GYLES & CONTI JJ 16 april 2003 SYDNEY (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY S228 OF 2002

BETWEEN: SBAJ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK, GYLES AND CONTI JJ

DATE OF ORDER: 16april 2003

WHERE MADE: SYDNEY (HEARD IN ADELAIDE)

THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant is to pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY S228 OF 2002

BETWEEN: SBAJ

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: MADGWICK, GYLES AND CONTI JJ

DATE: 16 APril 2003

PLACE: SYDNEY (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a judgment of Marshall J of 31 May 2002 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("RRT") (SBAJ v Minister for Immigration & Multicultural Affairs [2002] FCA 697). 2 The appellant was unrepresented before the primary judge and his application for review by the Court raised no question of law. His Honour disposed of the matter shortly, saying at [14] – [16]: "It is unnecessary for present purposes to consider whether the current application is rendered nugatory by s474 of the Act. The reason for that is that no submissions have been advanced on behalf of the applicant which disclose any judicially reviewable ground upon which the decision of the RRT might be overturned. In his affidavit filed with his application the applicant raised arguments concerning why certain of the RRT's findings of fact should not have been made. He also raised a concern about the quality of the translation service made available to him at the hearing before the RRT. As is pointed out in the respondent's written outline of argument, however, those concerns have not been [raised] beyond a mere assertion. In oral submissions today, the applicant repeated matters which had been put to the RRT. The Court is not in a position to review the RRT's decision on the merits, as was explained to the applicant at the hearing. I have considered the RRT's reasons for decision with care and I am unable to discern that any legal error has been committed by the RRT which this Court may have been able to remedy, putting to one side the effect of the 2001 Act." 3 The original Notice of Appeal filed by the appellant claimed that: "I was not given time to speak for myself" 4 It is not clear whether this was a complaint about the hearing before the primary judge or a repetition of his complaint about the RRT. 5 The decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 was given on 4 February 2003, not long before we heard the appeal. Thereafter an amended Notice of Appeal was filed which sought to take advantage of the broader approach taken by the High Court in S157 as to the interpretation of s 474 of the Migration Act 1958 (Cth) ("the Act"). 6 The revised grounds of appeal are: "The Court below failed to find any legal error on the part of the RRT which it might have remedied. The error of law which the Court should have recognised lay in the unreasonableness of the method by which the RRT reached the conclusion that the Appellant's claim that a warrant had existed for his apprehension was untrue. The error of law is one going to jurisdiction. Particulars The Appellant was disbelieved by the RRT as to the existence of the warrant on the basis of his general unreliability as a witness, but the RRT had the capacity to test the veracity of his claim for itself by requesting Australian Department of Foreign Affairs and Trade officials in Iran to make enquiry as to whether such a warrant had ever been made out. The further error of law which the Court below should have recognised lay in the RRT's failure to make a finding as to the real risk of future persecution which might result from the Appellant becoming 'a sincere Catholic neophyte'. The error constitutes a misunderstanding of law and a failure to take account of relevant considerations, both constituting errors of law going to jurisdiction. Particulars The RRT claimed to have 'fully considered' the prospect of both the Appellant being a sincere convert to Catholicism, and the implications of being a member of such a church. The RRT failed to make a finding as to whether the Appellant would engage in proselytising, and if he did, what the consequences would be. The further error of law which the Court below should have recognised lay in the RRT's assertion that it could find no evidence of Iranian Catholics being involved in proselytising, or of being punished for converting to Catholicism. This is in flat defiance of the material cited by the RRT from DFAT which states that 'the Catholic [and other named churches] have tended to face greater problems [than the Armenian and Assyrian churches] with the authorities on account of their links with the West and the greater importance placed on proselytising.' The use of evidence by the RRT is so illogical as to amount to error of law going to jurisdiction."