Case: SZKRK v Minister for Immigration [2007] FMCA 1384
Outcome: considered
The appellant's application for judicial review came before Scarlett FM ( SZKRK v Minister for Immigration [2007] FMCA 1384). 6 Three grounds were considered by his Honour. The first ground was that the Tribunal ignored or failed to consider important evidence submitted after the hearing, namely the appellant's reply to the s 424A letter (at [12]). His Honour concluded that the Tribunal did consider the material (at [17]). 7 The second ground was that the Tribunal failed to comply with its obligations under s 424A(1) of the Act (at [13]). His Honour concluded that the independent country information appeared to him to come within s 424A(3)(a) of the Act (at [18]) but noted that, in any event, all of the material was put to the appellant after the hearing in the s 424A letter (at [19]). 8 The appellant also alleged that there was bias or bad faith on the part of the Tribunal (at [20]). His Honour found that there was no evidence to support such an allegation, which, as he noted, must be strictly alleged and strictly proved and he declined to make a finding in that regard (at [20]). 9 The third ground was the appellant's claim that the Tribunal failed to comply with its obligations under s 425 of the Act (at [14]). His Honour could not find any such breach of the obligations under that section (at [21]). 10 His Honour considered each of the matters in the application and noted that he had himself read the decision and supporting materials and could not identify any other arguable ground of review. His Honour was satisfied that there was no jurisdictional error in the Tribunal's decision (at [17]). 11 The notice of appeal reflects the substance of the grounds that were raised before Scarlett FM. They are described as particulars of two grounds, being a claim that the Federal Magistrate erred in law and an assertion that the Federal Magistrate was wrong in his finding that the Tribunal acted properly. 12 The first particular asserts that the Tribunal ignored important evidence. What follows is a repeat of the appellant's response to the s 424A letter. No specific evidence is pointed to. 13 To the extent that this particular raises an attempt at merits review, that is not a matter for the Court. I do not see any matter raised in the response with which the Tribunal did not deal. The appellant, who appears before me in person assisted by an interpreter, has not pointed to any evidence set out in the particulars of his notice of appeal that he can say the Tribunal did not deal with. 14 The appellant now raises one additional matter. He claims that he was tortured while in detention and that he has physical scars that reflect that torture. He says that he did not show the scars to the Tribunal for what seems to be two reasons. First, he was not sure if it was appropriate to show the scars to the female Tribunal member. Secondly, he asserts that he wished to show those scars to the Tribunal member but that she did not give him the time or the opportunity to do so. I will return to the second matter. 15 If the appellant did not show the scars to the Tribunal member or make allegations specifically of torture, then it was not a claim made to the Tribunal and the Tribunal was not obliged to address it. Indeed, the Tribunal would not have known about it. I note that there is no reference to a claim of torture in the statutory declaration in support of his application for a protection visa, in the Tribunal's recitation of the case put by the appellant in writing or orally in the Tribunal, in the s 424A letter or in the Federal Magistrate's reasons. This is despite the fact that the appellant did set out in his written material what he said were the indices of his treatment while in detention. 16 There is no transcript of the hearing before the Tribunal in evidence that would assist in ascertaining whether or not the appellant attempted to make such a claim to the Tribunal. In the circumstances I am not satisfied that such a claim was made. 17 The second particular is simply an assertion that the Federal Magistrate erred in his conclusion that at least one of the appellant's claims was an attempt to conduct a merit review. This particular does not really represent a ground of appeal. I see it as a particular of the general ground that the Federal Magistrate erred in law.