FEDERAL COURT OF AUSTRALIA SZAIL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 266 MIGRATION – no issue of principle SZAIL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 2562 OF 2003 CONTI J 17 MARCH 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 2562 OF 2003 BETWEEN: SZAIL APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: CONTI J DATE OF ORDER: 17 MARCH 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal assessed at $2,500.00. 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 N 2562 OF 2003 BETWEEN: SZAIL APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: CONTI J DATE: 17 MARCH 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from the judgment and orders of Federal Magistrate Driver given on 11 December 2003, whereby his Honour dismissed with costs the appellant's application made under s 39B of the Judiciary Act 1903 (Cth) for review of the decision of the Refugee Review Tribunal ('RRT') handed down on 11 March 2003. The RRT decision had affirmed the decision of the Minister's delegate made on 20 May 2002 not to grant the appellant a protection visa. 2 The purported 'grounds of the appeal' read literally as follows: '… 2. The single judge of the Federal Magistrate Court in his Honors (sic) Judgment delivered on the 11 December 2003 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 a 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 Register of Tribunal for purpose of review – Nature and extent of obligation – Migration Act 1958 (Cth) ss 148(2), 424(1). 4. The Honorable (sic) 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 civilians life, which is a worldwide concern today. Honorable (sic) Trial judge did not take it into consideration. 5. S474 of the Migration Act is ineffective as per the recent two decision of the High Court of Australia. Honorable (sic) trial judge did not consider this in favor (sic) 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 (sic): Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 1 (4 February 2003). 8. Recent Federal Court of Australia judgement (sic): SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74 (14 February 2003).' 3 The appellant provided no written submissions within five working days prior to the hearing date, notwithstanding my directions given on 5 February 2004 that he do so. 4 The RRT accepted that the applicant was a citizen of India, but it did not accept any of the five claims of the appellant based on circumstances supposedly indicative of conflicts which he had experienced as a Muslim at the instance of Hindus in the village of the Tamil Naidu State in India, where he had successfully conducted a family fish shop. 5 The application for review of the RRT decision, earlier filed by the appellant on 3 April 2003, set out three grounds as follows: (i) the RRT did not exercise its powers in the prescribed manner; no particulars were provided of that ground; (ii) the RRT was biased; again no particulars of that serious charge were provided; and (iii) the RRT erred by failing to have regard to material of alleged relevance submitted to the Minister prior to the appellant's interview by the delegate. 6 Driver FM recorded in his reasons for judgment that the appellant was not able to expand upon the grounds set out in his application for review when he appeared in the Court below. His Honour thereafter recorded the following: '5. … Instead he asked me to look at a number of documents that he told me he had been able to obtain recently in order to substantiate his claims. One of those documents is an original newspaper article concerning the 1992 murder. A translation of that article apparently was before the RRT when it made its decision. The RRT dealt with that issue in paragraph 55 of its reasons. The presiding member said: "With respect to his claims that there is renewed interest in him as a suspect in connection with a 1992 murder in his village, I also reject these claims as a fabrication. Even accepting that the newspaper article which has been produced and translated is a genuine one, I am not satisfied that the mere reference to a person named [the same name as the applicant] in the article is a reference to the Applicant. While the Applicant was in custody in 1992 a man was arrested for the murder and the Applicant was released. He heard nothing further [about] the matter for about 10 years when he read the article in question in a newspaper. Because of my general concerns about his reliability as a witness, I do not accept as truthful claims by the applicant that there have been recent visits by police to the family home of the Applicant." 6. The statement by the presiding member of general concerns about the applicant's reliability as a witness is not further explained but I take this to be a reference to adverse credibility findings made in relation to most of the applicant's claims. 7. The applicant told me that he has recently been able to obtain court documents from Tamil Naidu State which he says prove that he is of renewed interest in relation to the 1992 murder. He showed me a bundle of documents which are photocopies of documents in the Tamil language. 8. The documents appear to bear a court stamp in English and appear to bear adhesive stamps identifying payment of court fees. The applicant told me that someone in Tamil Naidu on his behalf bribed a court clerk in order to obtain copies of the documents. Assuming all of that to be true I nevertheless do not consider that the documents assist him in these proceedings. 9. The documents appear to date from 1994 and 1995 and may well relate to the murder case. However, they were not put before the RRT and therefore could not have an impact on its decision. If the RRT had been made aware of the documents it is possible that the documents may have had some impact on the RRT decision. Whatever the documents may say they do not and could not establish jurisdictional error in the decision of the RRT. The rejection of this applicant's claims was reasonably open to the RRT on the basis of the material before it at the time. 10. Likewise, a letter in the Tamil language which the applicant showed me from someone in his home village which he said supported his claim is a new document and does not assist him in these proceedings. The documents may assist him should he choose to make an application to the minister under s 417 of the Migration Act 1958 (Cth). That is a matter beyond the scope of these proceedings. …' 7 In the result, 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. 8 The appellant did not articulate before me any conceivable error on the part of Driver FM in the reasons for judgment below, or any other basis for upholding the appeal. He brought with him to Court a bundle of papers, said to appear in the Tamil language, which I would infer were those referred to in his Honour's reasons extracted above. The same were marked for identification, after I explained why the Court could not pay regard to that material on this appeal. 9 The purported grounds of appeal were stereotype in content (see [2] above), bearing no viable connection with or relevance to any finding specifically made by Driver FM. The unfortunate conclusion inferentially to be drawn is that this appeal has been brought for the purpose merely of delaying the appellant's return to his place of origin. 10 The appeal must be dismissed and the appellant must pay the Minister's costs assessed at $2,500.00, being identical in amount to that the subject of his Honour's order below. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 17 March 2004 Appellant appeared in Person Solicitor for the Respondent: Sparke Helmore Date of Hearing: 17 March 2004 Date of Judgment: 17 March 2004