SZHDO v Minister for Immigration and Citizenship [2008] FCA 1843

FEDERAL COURT OF AUSTRALIA

SZHDO v Minister for Immigration and Citizenship [2008] FCA 1843

Migration Act 1958 (Cth), ss 5(1), 36 Convention relating to the Status of Refugees done at Geneva on 28 July 1951 Protocol relating to the Status of Refugees done at New York on 31 January 1967 SZHDO v Minister for Immigration and Anor [2008] FMCA 1156 affirmed SZHDO v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1398 of 2008

GRAY J

17 NOVEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1398 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHDO

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAY J

DATE OF ORDER: 17 NOVEMBER 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1398 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZHDO

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GRAY J

DATE: 17 NOVEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This appeal is from a judgment of the Federal Magistrates Court of Australia, published as SZHDO v Minister for Immigration and Anor [2008] FMCA 1156. That judgment was given on 15 August 2008. The learned federal magistrate dismissed an application by the appellant, seeking judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"), dated 24 December 2007 and handed down or sent on 10 January 2008. The Tribunal affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship ("the Minister"), to refuse to grant to the appellant a protection visa. 2 The appellant is a citizen of Nepal. He arrived in Australia on 29 November 2004. On 12 January 2005, he applied to the Department of Immigration and Citizenship for a protection visa. The Minister's delegate decided to refuse to grant the visa on 20 January 2005. The appellant has had two hearings in the Tribunal. The first decision affirming the delegate's decision was set aside by the Federal Magistrates Court and the matter was remitted to the Tribunal. 3 By s 36 of the Migration Act 1958 (Cth) ("the Migration Act"), there is a class of visas to be known as protection visas. A criterion for a protection visa is that the person applying for it be a non-citizen in Australia to whom the Minister is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The terms "Refugees Convention" and "Refugees Protocol" are defined in s 5(1) of the Migration Act to mean respectively the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to refer to those two instruments, taken together, as the "Convention". For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who: owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country 4 The appellant's case for a protection visa invoked the Convention ground of political opinion. He claimed that he had a well-founded fear of persecution from Maoist rebels, if he should return to Nepal. In its reasons for decision, the Tribunal examined the appellant's case in considerable detail. The Tribunal also relied on information obtained from sources other than the appellant as to circumstances in Nepal. The Tribunal found that there were important inconsistencies between different accounts the appellant had given in his attempt to pursue a protection visa. During the second Tribunal hearing, and by a subsequent letter, the appellant was given the opportunity to explain these inconsistencies. The Tribunal found that he did not explain them satisfactorily. The Tribunal made findings of fact based on its view as to the lack of credibility of the appellant, and on the Tribunal's comparison of the appellant's account of what had occurred to him and the other material on which the Tribunal relied. 5 In his amended application to the Federal Magistrates Court, the appellant relied on only one ground. He claimed that there had been jurisdictional error on the part of the Tribunal by reason of failure of the Tribunal to consider a claim he had made. This was a claim as to a particular way in which Maoists might have come to believe that the appellant was someone they should pursue. The federal magistrate considered this ground at [18]-[25] of his reasons for judgment. His Honour found that the Tribunal had not failed to deal with this aspect of the appellant's claim. I can find no error in the federal magistrate's conclusion in that regard. 6 The federal magistrate then proceeded to deal with another 11 submissions that his Honour identified as raised by written submissions on which the appellant had relied in that court. His Honour dealt with those submissions, notwithstanding that they bore no relationship to the ground of the application before him and notwithstanding that, other than in a general way, the submissions did not engage with the Tribunal's reasons. To some extent, those submissions may have contained elements that amounted to arguments of jurisdictional error on the part of the Tribunal. Otherwise, it is apparent that those submissions sought to challenge the Tribunal's findings of fact and its chain of reasoning in relation to the appellant's claims. 7 To the extent to which those submissions raised arguments of jurisdictional error, the federal magistrate dealt with them correctly. To the extent to which they raised claims about the Tribunal's findings of fact, or its chain of reasoning, the federal magistrate correctly identified that it was beyond that court's function to engage in merits review, by reversing the Tribunal's fact-finding or reasoning. His Honour was correct to hold that his role was limited to determining whether there had been any jurisdictional error on the part of the Tribunal. 8 The appellant's notice of appeal to this Court makes no serious attempt to identify error on the part of the federal magistrate. In that document, which contains 15 numbered paragraphs described as grounds of appeal, the appellant seeks again to make a case largely based on the proposition that the Tribunal reached wrong conclusions on matters of fact. The grounds do not make specific reference to any passage in the judgment of the federal magistrate. The appellant has also filed written submissions. He has relied on them without adding to them by oral submissions, other than by attempting to urge on me the justice of his case, and by contending that the federal magistrate placed too much reliance on the Tribunal's use of country information and did not give enough weight to the appellant's own circumstances. 9 It is clear that the appellant is not personally responsible for any of the documents on which he has relied in the Federal Magistrates Court or in this Court. He has informed me that another person is the author of those documents. It is not clear whether that other person has access to legal advice, but it is clear that the documents do not engage with either the Tribunal's reasons for decision or the federal magistrate's reasons for judgment in a way normally required in the exercise of the appellate jurisdiction of the Court. 10 I have read carefully the 15 paragraphs identified as grounds of appeal in the notice of appeal and the 11 paragraphs of the appellant's written submissions. What is written in the latter does not refer to the former. There is no real attempt to make out any grounds of appeal, only an attempt to re-argue the case in the hope that, as the appellant has said to me, I would see the justice of it and somehow make findings in his favour. I have endeavoured to explain to the appellant, through the interpreter assisting him, that the function of the Federal Magistrates Court and the function of this Court do not extend to overturning the Tribunal's findings of fact and substituting for them findings in his favour. 11 Nothing in the notice of appeal, or the appellant's submissions, identifies error on the part of the federal magistrate. Nothing in those documents identifies jurisdictional error on the part of the Tribunal. It follows that the appeal must be dismissed. 12 The Court orders that: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.