SZAPW v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 944

FEDERAL COURT OF AUSTRALIA

SZAPW v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 944

SZAPW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 815 of 2004

WILCOX J
15 JULY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 815 of 2004

BETWEEN:	SZAPW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	15 JULY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 815 of 2004

BETWEEN:	SZAPW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	15 JULY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision of Federal Magistrate Scarlett.  The Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs to refuse to grant the appellant a protection visa.  The Chief Justice has directed that the appeal to this Court be heard by a single judge.  Accordingly, the judgment that I am delivering is the judgment of the Court in this matter. 

2. The appellant appears for himself assisted by an interpreter.  Before the hearing, he filed a written submission which I read before I came into court.  I have discussed the submission with the appellant.  He has indicated that he does not wish to add to what is set out in the document.  The submission mentions several grounds of judicial review of an administrative decision.  Essentially, however, it raises two claims for my consideration.  I will deal with them separately.

3. The first claim is that the Tribunal did not properly consider documents put before it by the appellant.  The claim emerges in respect of two grounds of review: actual bias and failure to consider relevant material.

4. I drew the appellant's attention to the fact that the Tribunal’s reasons for decision refer to several documents placed before it by the appellant.  There is no reference in the reasons for decision to documents being disregarded or discounted, for example, because of doubts about their authenticity or for some other reason.  Therefore, I had difficulty in identifying the documents to which the appellant was intending to refer.  I invited the appellant to assist me by identifying the documents about which he was speaking.  He said he was unable to do this.  In these circumstances, I am unable to be satisfied that the Tribunal disregarded any documents which might fairly be regarded as relevant to the appellant's claim.  I must reject the claim that the Tribunal ignored relevant material. 

5. I asked the appellant whether his claim of actual bias was based on anything other than the Tribunal’s alleged failure to consider relevant documents.  He replied it was not.  That being so, there seems to be no basis for the claim of actual bias.  There seems to be nothing in the reasons of the Tribunal that would raise concern about the impartiality of the Tribunal member.  The claim of actual bias must also be rejected.

6. The second claim of the appellant arises out of the fact that the Tribunal rejected his claim to be a refugee.  In his written submission, the appellant stated the Tribunal was wrong about this and he was indeed a genuine refugee. 

7. I think the appellant understands that the Court has no power to review the Tribunal’s findings of fact.  However, he relied on the ultimate factual finding of the Tribunal, which he claimed was erroneous, to support a suggestion that the Tribunal ignored or failed to consider his claims.  He also said this indicated that the Tribunal misunderstood, and did not observe, the Migration Act 1958 (Cth) (‘the Act’). No other basis was argued in respect of either of these grounds of review. When I asked the appellant whether there was any further material he wished to identify in regard to them, he said that there was not.

8. The appellant's argument is that the Tribunal must have ignored or failed to consider his claim, and must have misunderstood and failed to observe the Act, simply because it reached a conclusion unfavourable to him.  That argument is obviously illogical.  It must be rejected.  Essentially, the appellant is inviting the Court to enter the forbidden ground of reviewing the Tribunal's conclusions of fact.

9. As the appellant is not legally represented, I have read the Tribunal's reasons for decision and, of course, the decision of the Magistrate.  I express no opinion about the facts of the case.  That is not a matter for the Court.  However, I am satisfied there is nothing in the material which indicates any available ground of judicial review of the Tribunal's decision.  In my opinion, the Magistrate was correct to dismiss the application made to him.  Accordingly, the appeal must fail. 

10. The order of the Court is that the appeal be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             26 July 2004

The Appellant appeared in person.
Counsel for the Respondent:	Mr S Lloyd
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	15 July 2004
Date of Judgment:	15 July 2004