Case: SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648
Outcome: considered
The Federal Magistrate then dealt at length with the s 91R(3) point. He did so pursuant to a further amended application for review that was filed on 4 October 2007 and presumably stood in place of the original application for review. His Honour held that the matter was conclusively determined against the then applicant by the decision of Jacobson J in SZHFE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2006] FCA 648. In that case, Jacobson J held that s 91R(3) did not apply so as to require conduct engaged in by an applicant in Australia to be disregarded by the Minister unless the applicant relied upon such conduct to support a claim for protection. Counsel for the then applicant submitted that the decision in SZHFE was not correct and should not be followed. He put that submission somewhat boldly having regard to the fact that SZHFE had been the subject of an application for special leave to appeal to the High Court and that application had been refused. 12 By notice of appeal filed on 17 March 2008 the appellant relies upon the following grounds: "1. The Honourable trial judge failed to consider that the Tribunal accepted that 'the applicant is a member of Awami League and was involved in Dhaka city Awami League' in considering this matter trial judge made an error. 2. The Tribunal failed to comply with the notice of 424A of the Migration Act and the trial judge erred in considering this argument. 3. The Honourable trial judge made an error not to consider the applicant's involvement in Australia." 17 There are many difficulties with that submission. In the first place, it flies directly in the face of SZHFE, a case which has at least twice been considered and followed in this Court: see SZIMY v Minister for Immigration and Citizenship [2007] FCA 249 at [11] and SZHTC v Minister for Immigration and Citizenship [2007] FCA 1199 at [25] . SZHFE was the subject of an application for special leave to appeal to the High Court. That application was dismissed by Kirby and Callinan JJ, who expressly stated that they agreed with the analysis of Jacobson J. 22 Counsel for the appellant submitted that his client had merely responded to questions put by the RRT, and not volunteered any statement about his connection with the local support group. He argued that this meant that this case did not fall within the principle laid down in SZHFE. I am not persuaded by that submission. Nor am I persuaded by his alternative submission that it would be unfair to the appellant to allow regard to be had to his conduct after arriving in this country for the purpose of impugning his credibility but not in support of his claim for protection. There is nothing unfair about allowing a decision-maker to apply common sense when considering questions of fact while, at the same time, preventing the system of protection from abuse. The Federal Magistrate was correct to conclude that the RRT did not contravene s 91R(3). 23 It follows that the appeal should be dismissed. The appellant must pay the first respondent's costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 20 May 2008 Counsel for the Appellant: Mr J.R. Young Counsel for the First Respondent: Mr P Braham Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 20 May 2008 Date of Judgment: 20 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/722.html