SZFLZ v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1345

FEDERAL COURT OF AUSTRALIA

SZFLZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1345

Federal Court of Australia Act 1976 (Cth) s 25(1A)

SZFLZ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1193 OF 2005

HELY J
12 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1193 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFLZ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	12 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed with costs.

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	NSD 1193 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFLZ APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	12 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Scarlett FM dismissing an application for judicial review of a decision of the Refugee Review Tribunal (‘the RRT’) which affirmed a decision of the Minister’s delegate not to grant the appellant a protection visa. By direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) this appeal is to be heard and determined before a single judge.

2. The appellant is a citizen of the Peoples’ Republic of China, who claims that he would be persecuted if he returned to China because of his religious and/or political beliefs. 

3. The claims which the appellant made before the RRT are set out in detail in the RRT’s reasons for decision and I do not propose to repeat them here.  It is apparent from the RRT’s reasons for decision that it questioned the appellant at length at the hearing about his claims.  The RRT did not form a favourable impression of the appellant’s credibility, and observed that the appellant’s oral evidence was confused, inconsistent and implausible. At the hearing, the RRT went through each of the appellant’s central claims.  Shortly put, the RRT did not believe the appellant about any of the central claims which he made, and was not satisfied that the appellant is a refugee.

4. On 11 January 2005, more then five years after the RRT’s decision, the appellant filed an application for review in the Federal Magistrates Court.  Scarlett FM dismissed the application. His Honour considered the appellant’s claims and noted the conclusions of the RRT in relation to those claims.  At [24] of his reasons for judgment, his Honour noted that in substance the application for review sought to canvass the facts of the RRT’s review on its merits.  His Honour also noted that the appellant had made a claim of bias, and observed that claims of bad faith are serious allegations involving personal fault on the part of the decision-maker which should not be made lightly.  At [28] of his Honour’s reasons for judgment his Honour said:

   ‘The fact is that the applicant has not shown in his applications or in his submissions any ground for judicial review.  He has shown no jurisdictional error and in my examination of the Tribunal’s decision, which I have conducted independently of the applicant’s submissions, I cannot find any ground for finding of a jurisdictional error.’

5. His Honour concluded that there was no denial of natural justice, and no breach of any requirement of procedural fairness. 

6. The appellant filed a Notice of Appeal to this Court.  The grounds of appeal do not contain any recognisable ground of appeal, and provide no particulars of any error on the part of Scarlett FM, nor do they identify any jurisdictional error on the part of the RRT.  On 2 August 2005 the appellant was directed to lodge an outline of his submissions with the Court prior to the hearing.  That direction has not been complied with. Nonetheless I invited the appellant to tell me this morning how, or in what way, Scarlett FM erred.

7. The appellant told me that he was not happy with the decision which he received last time and that he was not convinced by the decision of the RRT.  His principal complaint with the RRT’s decision was that he is an honest man who was persecuted in China, but the RRT did not believe him.  He invited me to listen to the tape of the proceedings before the RRT but the tape was not placed in evidence in the Federal Magistrates Court, nor did I have the tape.  It is apparent from what the appellant told me this morning that he is seeking a merits review of his case before the RRT.  This is not an exercise upon which the Court is empowered to embark. My task is confined to deciding whether Scarlett FM made an error or whether the RRT committed a jurisdictional error.

8. Assessment of the appellant’s credibility is a matter for the RRT to undertake.  The RRT gave its reasons for its conclusion that the appellant’s evidence lacked credibility. There is no jurisdictional error involved in the RRT coming to that conclusion for the reasons which it gave.  The difficulty for the appellant in this case, as Scarlett FM correctly observed, is that the RRT did not believe the appellant’s central claims.  In those circumstances the appeal must be dismissed with costs.

9. The Minister seeks an order that I should fix the amount of the costs.  I do not think I am in a position to undertake that exercise because I have no evidence before me as to the actual costs involved in this application or the usual level of such costs in proceedings before this Court.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             22 September 2005

The appellant appeared in person
Counsel for the Respondent:	Ms L Clegg
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	12 September 2005
Date of Judgment:	12 September 2005