Case: SZMXS v Minister for Immigration and Citizenship [2009] FMCA 537
Outcome: affirmed
Application was subsequently amended on 30 January 2009. The Amended Application set forth the Grounds upon which it was advanced as follows (without alteration): Ground one. The Tribunal failed to take into account a relevant consideration, and failed to give genuine, realistic, and proper consideration, to a central aspect of the Applicant's claim, which was that the Applicant worked as a journalist for the Gujarat daily, and published numerous articles with his byline attached, which supported his claims to be a Muslim activist, targeted by the authorities in India ( Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 , at 197-199). Particulars. 1.1 A simple inquiry of the editor of the Gujarat Daily, as requested by the Applicant, would have revealed that the Applicant had worked for the Gujarat Daily as claimed. 1.2 The Tribunal's own request that DFAT in India verify that the form of the press card held by the Applicant was consistent with the press cards issued by the Gujarat Daily newspaper had not been complied with, and could simply have been followed up. 1.3 The form of DFAT's response to the Tribunal request that it attempt to verify these claims central to the Applicant's case was sufficient to alert the Tribunal to an obvious obscurity or problem with the inquiries made by DFAT; the source was clearly either unco-operative or not sufficiently informed. Ground two. The Tribunal failed to comply with section 425 of the Migration Act 1958 , and failed to give the applicant a proper opportunity to appear before the Tribunal and present evidence and argument in relation to the issues upon which the case turned in refusing to accept the tender of articles written by the Applicant in the Gujarat Daily newspaper, which were relevant because they could easily have been authenticated through DFAT in India. The Minister was called upon to show cause why relief should not be granted on these Grounds . The Federal Magistrates Court dismissed the Application before it on 25 June 2009: SZMXS v Minister for Immigration and Citizenship [2009] FMCA 537. Before the Federal Magistrates Court the now Appellant was represented by Counsel. A Notice of Appeal was thereafter filed in this Court on 14 July 2009. The Grounds of Appeal provide as follows (without alteration): In term of false case the Respondent said that there is no charges against appellant. There is no basis of this as such the Respondent made an error in making this decision The Respondent committed jurisdictional error of LAW by failing to consider an integer of Appellant's claim: (a) that Appellant no provide documents which was relied in making the decision (b) about enquiries to the GUJRAT DAILY employment. The Respondent made irrelevant consideration in deciding the case and Respondent founding was based on wrong footing and no basis in making this decision The Tribunal thus made some inquiries. No jurisdictional error is exposed by the Tribunal not making further inquiries or not causing further inquiries to be made. Nor is an error exposed in the reasons for decision of the Federal Magistrate in rejecting arguments founded upon any alleged failure to make inquiries: [2009] FMCA 537 at [14] to [26]. As with the previous Ground of Appeal , this Ground too suffers from the defect that it does not identify any appellable error said to have been committed by the Federal Magistrate. But it, too, can be construed as a contention that the Federal Magistrate erred in rejecting a comparable argument with respect to the Tribunal's decision. So construed, the Ground was understood to relate to the myriad newspaper articles sought to be relied upon by the now Appellant when appearing before the Tribunal. Although the Ground refers to the Tribunal " refusing to accept the tender of articles ", that may not be an accurate manner in which to describe what happened.