SZDZH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1533

FEDERAL COURT OF AUSTRALIA

SZDZH v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1533

Migration Act 1958 (Cth) ss 424A, 425, 427

Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73

Re Minister for Immigration and Multicultural Affairs & Anor; ex parte Abebe [1999] 197 CLR 510;

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Applicants S134/2002 [2003] 211 CLR 411

Re Minister for Immigration and Multicultural and Indigenous Affairs: ex parte Cassim (2000) 175 ALR 209

SZDZH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD930 OF 2005 BENNETT J 12 OCTOBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD930 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDZH

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT JUDGE: BENNETT J

DATE OF ORDER: 12 OCTOBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: (1) The appeal be dismissed. (2) The appellant pay the first 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 NSD930 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDZH

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: BENNETT J

DATE: 12 OCTOBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of Nepal who claims fear of persecution based on his political opinion, stemming from having been a member of the Maoist Party in Nepal. The factual matters upon which he relied and to which the Tribunal referred in its decision are set out in the appellant's statutory declaration and written submissions, which were forwarded to the Tribunal. 2 The Tribunal did not find the appellant's claims plausible or credible. The Tribunal did not believe that he had been a member of the Maoist Party or that he was involved in the activities of this party as he claimed. 3 The Tribunal decision on the appellant's application for a protection visa was made on 30 June 2002 and handed down on 24 July 2002. The appellant then filed an application for review to the Federal Magistrates Court in August 2002 but subsequently discontinued that application. He then filed in the High Court later that year. The proceeding was remitted to the Federal Court of Australia on 7 February 2003 and on 22 August of that year, Selway J dismissed the application for failure to comply with orders of the Court. 4 The present appeal arises from an application for judicial review filed in the Federal Magistrates Court on 2 July 2004. The Minister filed a notice of objection to competency based upon the fact that the application was filed out of time. Federal Magistrate Nicholls found that the Tribunal's decision was a privative clause decision and consequently held that he had no jurisdiction. 5 This is an appeal from the decision of Nicholls FM, commenced by a notice of appeal filed on 9 June 2005. The grounds of appeal expressed in extreme terms with respect to the Federal Magistrate's conduct of the hearing. It is quite unfortunate that the grounds have been couched in those terms and Mr Jayawardena who appears for the appellant does not rely upon them. Apart from expressing a concern as to the language used I will not take that matter further. 6 There has been no application for leave to appeal and I note that the Federal Magistrate did undertake a detailed consideration of the Tribunal's decision. The parties have agreed that the matter should proceed so that this Court will consider the merits of the appeal and no point is taken whether or not the proper procedures have been complied with. 7 The appellant relies upon the matters set out in an outline of written submissions that were forwarded to the court after the time that was directed for such filing and also after the written submissions of the respondent were filed. Ms Rayment who appears for the Minister does not take issue with that. It is agreed that I should treat the outline of submissions as providing the grounds of the appeal. I note that there were a number of procedural matters that were dealt with by Federal Magistrate Nicholls. Some of those were referred to in the notice of appeal but are not presently part of the grounds of appeal and I shall not consider them further. Fundamentally, the appeal is based upon the findings of the Tribunal and an asserted error on the part of the Federal Magistrate in failing to find jurisdictional error by the Tribunal. 8 In its decision the Tribunal sets out a number of factual matters including matters that had been submitted to it by the appellant's solicitors by letter after the hearing. I note that the solicitors appreciated that a major concern of the Tribunal was the appellant's credibility. The letter to the Tribunal specifically refers to that matter and then provides some pages of detailed material for the Tribunal to take into account in assessing that aspect of the claim. 9 The Tribunal's conclusion was quite clear and that matter has been recognised by Mr Jayawardena. The Tribunal simply did not accept the appellant's claim that he had joined the Maoists and had become actively involved with them. The Tribunal found the appellant: '[Not] to be credible and finds that [the appellant] did not join the Maoists as he has claimed, that he was not an ordinary member or any other kind of member of the Maoists and was not involved in the activities he claimed.' (It is accepted that there was a typographical error in the Tribunal's decision, so that this represents the Tribunal's conclusion.) The Tribunal gave reasons for finding the claim implausible. 10 Accordingly, the Tribunal said that it was 'satisfied that [the appellant] does not face a real chance of serious harm from the Nepalese authorities for reasons of his political opinion, actual or imputed or for any other Convention reason.' It followed that the appellant was found not to face a real chance of harm on return to Nepal. 11 The grounds of appeal can be characterised as follows: