SZAXP v Minister For Immigration & Multicultural & Indigenous Affairs [2005] FCA 110

FEDERAL COURT OF AUSTRALIA

SZAXP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS [2005] FCA 110

MIGRATION – appeal from Federal Magistrate – no denial of natural justice or procedural fairness – no improper exercise of power – no absence of evidence – appeal dismissed Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671 Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 SZAXP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1677 OF 2004 CONTI J 18 FEBRUARY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1677 OF 2004

BETWEEN: SZAXP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 18 FEBRUARY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant to pay the respondent's costs of the appeal calculated at $2875. 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 NSD 1677 OF 2004

BETWEEN: SZAXP

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 18 FEBRUARY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the whole of the judgment of Driver FM given on 23 June 2003, whereby his Honour dismissed the appellant's claim to set aside a decision of the Refugee Review Tribunal ('RRT') made on 23 June 2003, which in turn had affirmed a decision of the Minister's delegate not to grant a protection visa. 2 The appeal is purportedly brought on four grounds, none of which are explained in any meaningful way in the notice of appeal. Those grounds are denial of natural justice and procedural fairness (grounds 1 and 2), improper exercise of power (ground 3) and absence of evidence (ground 4). Grounds 3 and 4 were not articulated below before his Honour. 3 On 22 December 2004, the Chief Justice of this court authorised this appeal to be held by a single justice of this Court. 4 Despite my order made on 14 December 2004 that the appellant file and serve an outline of submissions five working days prior to the hearing, that has not occurred. The Minister has however provided carefully framed written submissions in accordance with the Court's directions. 5 Counsel for the Minster summarised the characterisation of the grounds of review advanced by the appellant as follows: '3.1 The Tribunal ought to have believed the documents provided by the Applicant in respect of his claim that he was not a citizen of Bangladesh. The Tribunal ought to have inquired of the Bangladesh High Commission and the failure to do so was a procedural mistake. 3.2 The Tribunal was wrong when it said that NOFA (National Organisation Fighting for Arakan) and ROS (Rohinga Solidarity Organisation) were not banned in Bangladesh as both are banned. 3.3 The Tribunal was wrong in finding that the Applicant was only "wanted" in certain parts of Bangladesh as the Applicant is "wanted" in all parts of Bangladesh as a Rohinga terrorist who is destabilising relations between Bangladesh and Burma.' 6 The submission of counsel for the Minister addressed each of the present grounds of appeal as follows: Ground 1 – denial of natural justice/procedural fairness (i) the basis of the alleged denial is not specified in the notice of appeal. If it is said to be the 'failure' of the Tribunal to make its own inquiries about the Appellant's nationality, the claim ought to be rejected for the reasons given by the Court below at pages 4 to 5. (ii) Division 4 of Part 7 of the Act sets out the requirements for the conduct of review by the RRT. The RRT is not required to actively assist the applicant in putting his or her case; nor is it required to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671. (iii) in Minister for Immigration & Multicultural & Indigenous Affairs v SCAR [2003] FCAFC 126 (6 June 2003), the Full Court of this Court said at [31] that: 'It is also clear that the requirements of natural justice in any particular instance are to be determined in the relevant statutory context: see Kioa v West (1985) 159 CLR 550 at 584-585, 611. This means that it may be misleading, at least in Australia, to discuss "natural justice" as if that term always has a fixed meaning in every statutory context. So, for example, the fact that an obligation to afford natural justice does not normally imply a duty upon the decision-maker to make inquiries (see Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd (1994) 119 ALR 206 at 213-214) does not mean that there may not be a duty to inquire in relation to a particular issue under a particular statute. Inquiries in relation to "fitness to plead" may be an obvious example: see Eastman v The Queen (2002) 203 CLR 1.' (iv) as the Court below observed, the appellant's own documents pointed to his nationality as Bangladeshi, which the RRT was entitled to accept (at paragraph 5). (v) no denial of natural justice or lack of procedural fairness is disclosed on the documents. Ground 2 – improper exercise of power (vi) the basis for the alleged improper exercise of power has not been disclosed, and thus cannot be the subject of meaningful response other than that, as the Court below found, the RRT had 'understood and thoroughly investigated all aspects of the applicant's claim. The proceedings conducted by the RRT appear to have been fair. The applicant was unsuccessful before the RRT because his claims were rejected on credibility grounds. That conclusion was also reasonably open to the presiding member on the material placed before the RRT' (at [6]). Ground 3 – No evidence (vii) there was ample evidence before the RRT capable of supporting its findings. That evidence is described in the relevant documents at 85 (the RRT had before it the Department's file and the RRT file) and the appellant gave oral evidence; (viii) the evidence was considered in detail by the RRT at relevant documents 85 to 99 of the file; (ix) the RRT's findings at relevant documents 99 to 106 were open on the evidence; (x) the RRT plainly reached a view about the applicant's credibility adverse to the applicant; the process of the hearing below demonstrated that the RRT gave the applicant in question and answer style, ample opportunity to address the RRT's concerns about the applicant's claims: see relevant documents at 91 at [14]; the RRT was not required to approach those claims as if its mind were blank Minister for Immigration and Multicultural Affairs v Jia (2001) 178 ALR 421 at [71]-[72]; the ultimate and adverse assessment of credibility was a matter for the Tribunal alone – the finding on credibility being 'a function of the primary decision-maker par excellence'. Conclusion 7 The appeal grounds have not been made out, for the reasons carefully and competently framed above, to which I need add nothing further. The appeal is dismissed with costs calculated at $2875. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.