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MIGRATION - RRT decision - no error of law found - 78B notice alleging constitutional point - constitutional matter severed and application dismissed.

SZDKJ v Minister for Immigration [2004] FMCA 739 (15 October 2004)

SZDKJ v Minister for Immigration [2004] FMCA 739 (15 October 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDKJ v MINISTER FOR IMMIGRATION
[2004] FMCA 739




MIGRATION - RRT decision - no error of law found - 78B notice alleging constitutional point - constitutional matter severed and application dismissed.




Judiciary Act 1903 (Cth), ss.39B, 78B, 78B(1), 78B(2)(c)

Migration Act 1958 (Cth) 474, ss.475, 476, 483A

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Applicant:
SZDKJ




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1219 of 2004




Delivered on:


15 October 2004




Delivered at:


Sydney




Hearing date:


15 October 2004




Judgment of:


Smith FM




REPRESENTATION

Counsel for the Applicant:


In person




Counsel for the Respondent:


Dr M. Allars




Solicitors for the Respondent:


Australian Government Solicitor




ORDERS

(1) Application dismissed

(2) Applicant to pay the respondent's costs in the sum of $4000 and have 28 days to pay that amount.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1219 of 2004

SZDKJ



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This is an application invoking the Court's jurisdiction under s.483A of the Migration Act 1958 (Cth) challenging a decision of the Refugee Review Tribunal dated 26 March 2004 and handed down on 20 April 2004. The application as originally filed contained only one effective ground which was:

"The decision was incorrect according to law."

2. The application had no particulars as to what errors of law were alleged and was signed by the applicant himself. He has appeared today on his own behalf with the assistance of an interpreter. He was unable to identify any ground of error of law in the Tribunal's decision.

3. It is sufficient for me to indicate the nature of the claims made by the applicant in his protection visa application by extracting a passage in the Tribunal's decision in which it summarises and makes findings on them. It said under the heading "Findings and Reasons":

The Applicant's claims may be summarised as follows. The Applicant claims that he is in favour of democracy for Tonga and fears that on returning to Tonga if his views become known then he might be jailed. The Tribunal finds as follows.

The Tribunal accepts that the Applicant may be in favour of democracy for Tonga. However in the absence of any political activity on the part of the Applicant which would (sic: give him a) political profile the Tribunal does not accept that the Applicant's mere sympathy for democracy, of itself, gives rise to a well founded fear of harm amounting to persecution on the Applicant's return to Tonga.

At the hearing the Applicant stated that he has not in the past engaged in any political activities in relation to his political views, nor has he engaged in any public expressions of his views such as writing letters to newspapers. Nor has he thus far experienced difficulties with the authorities of Tonga by reason of his political opinion.

The Applicant merely claims that he may on his return to Tonga begin to express his political views which may in turn result in his arrest. However in light of the fact that the Applicant has no history of expressing his political opinion the Tribunal does not accept that the Applicant will on his return to Tonga begin to express his views in a matter or form that will lead to his persecution at the hands of the authorities of Tonga.

Accordingly the Tribunal is not satisfied, on the evidence before it, that the Applicant has a well-founded fear of persecution within the meaning of the Convention.

CONCLUSION

Having considered the evidence as a whole, the Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the Applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.

4. It appears to me that this passage correctly identifies the nature of the applicant's claims insofar as they are revealed in the material in evidence before me. In my view the reasoning of the Tribunal was legally correct and I can identify no error of law which is remotely arguable.

5. In those circumstances, no ground of review arises which would allow the Court to give a remedy under s.39B of the Judiciary Act 1903 (Cth) as vested in this Court under s.483A of the Migration Act.

6. It also follows that I have no need to refer to the provisions of s.474 of the Migration Act in order to reach a conclusion that the application must fail.

7. The above finding means that I have no need to address what was claimed to be a Constitutional matter identified in a Notice under s.78B of the Judiciary Act, being:

"(a) whether section 474 of the Migration Act 1958 is invalid.

(b) whether ss 475 and 476 of the Migration Act are invalid."

8. I do, however, note that the validity of s.474 was decided by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476, which held that the limitation on jurisdiction in relation to "privative clause decisions" was valid once that term was interpreted in the manner that the High Court interpreted it.

9. It is apparent from the filing of the s.78B notice on 24 September 2004 that the applicant has not been without assistance from someone with a smattering of legal knowledge, albeit that he has appeared today on his own. He was not able to elaborate his Constitutional point but seemed to be aware of the Court's duty under s.78B(1) not to proceed where a Constitutional matter had been "involved". He applied for an adjournment making oblique reference to that duty. However that duty is subject to the provision of s.78B(2)(c) which allows a Court in which a matter under sub-s (1) is pending to:

"Continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation."

10. I have proceeded today on that basis, that is, by severing from any Constitutional points the initial issue which faced the applicant: that of showing error which would justify remedy under s.39B absent the limitations under the provisions challenged in the s 78B notice. As I have indicated above, I have decided that the application would fail on that basis. The Constitutional point therefore does not need to be addressed.

11. For the above reasons I dismiss the application.

RECORDED : NOT TRANSCRIBED

12. I shall order the applicant pay the respondent's costs in the sum of $4000 and allow the applicant 28 days to pay that amount, on the basis that that is likely to be the period of duration of his continuing bridging visa. He should then negotiate with the Department and take legal advice if he needs any further time.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Iliya Marovich-Old

Date:
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