SZJTL v Minister for Immigration and Citizenship [2007] FCA 1581

FEDERAL COURT OF AUSTRALIA

SZJTL v Minister for Immigration and Citizenship [2007] FCA 1581 Migration Act 1958 (Cth) s 424A SZJTL v Minister for Immigration & Anor [2007] FMCA 816 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 SZJTL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD1094 OF 2007

BUCHANAN J

18 OCTOBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1094 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJTL

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J

DATE OF ORDER: 18 OCTOBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed with 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 NSD1094 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJTL

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BUCHANAN J

DATE: 18 OCTOBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT BUCHANAN J: 1 The appellant is a citizen of India. He arrived in Australia on 2 April 2006 and applied for a protection (Class XA) visa on 15 May 2006. That application was refused by a delegate of the first respondent ('the Minister') on 20 July 2006. On 17 August 2006 the appellant applied to the Refugee Review Tribunal ('the RRT') for review of the delegate's decision. The RRT handed down its decision on 31 October 2006. It affirmed the delegate's decision. The appellant thereupon brought an application for judicial review of the RRT decision in the Federal Magistrates Court of Australia (the FMCA). On 29 May 2007 the FMCA dismissed the application with costs (SZJTL v Minister for Immigration & Anor [2007] FMCA 816). 2 The grounds for judicial review were that the RRT had failed to comply with the provisions of s 424A of the Migration Act 1958 (Cth) ('the Act'). 3 Section 424A provides: '(1) Subject to subsection (3), the Tribunal must: (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understand why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The information and invitation must be given to the applicant: (a) except where paragraph (b) applies – by one of the methods specified in section 441A; or (b) if the applicant is in immigration detention – by a method prescribed for the purposes of giving documents to such a person. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) that is non-disclosable information.' 4 The FMCA found that none of the matters which were relied upon by the appellant raised obligations under s 424A. It found that some of the 'information' which the appellant argued should have been notified to him was given by the appellant for the purpose of his application for review and fell therefore within the exclusionary provision of s 424A(3)(b), some of the information was not specifically about the appellant but was about a class of persons of which the appellant is a member (see s 424A(3)(a)) and some was drawn from the applicant's evidence given at the hearing and was also therefore excluded from the operation of s 424A(1) by s 424A(3)(b). 5 FMCA also noted that the appellant failed before the RRT because he was not believed. This basis for the rejection of his application for review does not raise a jurisdictional issue. 6 The appeal to this Court contains two grounds of appeal expressed as follows: '1. The Honorable Federal Magistrate erred in considering that the Refugee Review Tribunal (the Tribunal) made an error of Law, when the Tribunal did not comply the requirements of s 424A of the Migration Act 1958, which constitutes jurisdictional error when it rejected my claim. 2. The Honorable Federal Magistrate erred in finding that the Tribunal did not act properly to ensure sufficient justice to the applicant at the hearing.' 7 It is clear from consideration of the findings and reasons expressed by the RRT that a number of very significant inconsistencies were revealed by a comparison of the appellant's oral evidence before the RRT and his claims for a protection visa. The RRT gives a detailed account of these matters in its decision. The RRT, as a result, made the following findings about the appellant's credibility: 'The Tribunal found the applicant to be entirely lacking in credibility. His claims are not only inconsistent with the independent evidence, but also – at hearing – internally inconsistent and so far fetched as to be fanciful. … In light of the applicant's inconsistencies with regard to his whereabouts and residences, the Tribunal finds that the applicant has actually been dishonest in his evidence … On the evidence available to the Tribunal, and bearing in mind the applicant's almost complete lack of credibility and lack of corroborative evidence, the Tribunal cannot be satisfied that the applicant has any fear in India arising from any actual or suspected involvement with PWG. … On all of the evidence available to the Tribunal, it cannot be satisfied that the applicant has been truthful or honest with it, and finds that the applicant has misled the Tribunal in an effort to bolster a claim for a protection visa. The Tribunal cannot give weight to any of the applicant's claims or evidence.' 8 Assessments of this kind are matters for the RRT to make. In the absence of some concern or indication arising from its decision or other material that it may have committed a jurisdictional error in reaching its conclusions there is no basis for judicial intervention. No such indication appears from the RRT decision in the present case. It follows that ground 2 in the Notice of Appeal, which I set out earlier, cannot succeed. 9 Nor can the appellant succeed on ground 1 in the Notice of Appeal. There is no reason to doubt the correctness of the FMCA's conclusions or the soundness of the reasons for those conclusions expressed in its judgment of 29 May 2007. The bare and unparticularised assertion that the Federal Magistrate made an error of law in relation to the requirements of s 424A of the Act does not advance the appellant's position. 10 The appellant filed a written submission. For the most part it simply asserted that the RRT should not have made the findings which it did. These assertions do not raise any question of jurisdictional error. The submissions also stated that the appellant relied on SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 but gave no indication how it was claimed either of those cases applied to his circumstances. I cannot see any assistance for the appellant in either of these decisions. At the hearing of the appeal the appellant indicated through an interpreter that he did not wish to make any oral submission. Accordingly there is no support of any kind for the appeal. 11 The appeal will be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.