SZJNZ v Minister for Immigration and Citizenship

[2007] FCA 1970

FEDERAL COURT OF AUSTRALIA

SZJNZ v Minister for Immigration and Citizenship [2007] FCA 1970

SZJNZ v MINISTER FOR IMMIGRATION AND CITZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1479 OF 2007

FLICK J
16 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1479 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZJNZ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FLICK J
DATE OF ORDER:	16 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed pursuant to Federal Court Act 1976 (Cth), s 25(2B)(bb)(ii).

2.The Appellant to pay the First Respondent’s costs of and incidental to the appeal.

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 1479 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZJNZ Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	FLICK J
DATE:	16 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The present proceeding is an appeal from a decision of the Federal Magistrates Court given on 10 July 2007. 

2. The Federal Magistrates Court dismissed an application to review a decision of the Second Respondent, the Refugee Review Tribunal, handed down on 14 September 2006.

3. The Tribunal there affirmed a decision not to grant the Appellant a protection visa. The jurisdiction of this Court to hear the appeal is that conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). That appellate jurisdiction may be exercised by a single judge: see s 25(1AA)(a).

4. There was no appearance by the Appellant at the hearing today. The matter was set down for hearing at 10:15am this morning. The appellant was not then in Court. The matter was called on for hearing again at 10:40am but there was still no appearance.

5. The First Respondent applied for an order that the appeal be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth).  It is considered that the appeal should be dismissed pursuant to that provision. 

6. It should be further noted that even if the appeal was not so dismissed, I would otherwise have been minded to dismiss the appeal.  None of the three grounds of appeal it is considered have any merit. 

   GROUNDS OF APPEAL 

7. The Notice of Appeal that was filed with this Court on 30 July 2007 states the grounds of appeal as follows:

   1.   The Tribunal had bias against me and could not consider my application based on evidence and materials.  I believe that the decision was induced by actual bias of the officer.

   2.   The Tribunal referred to wrong independent information for the consideration of my application.  The decision was based on assumption of the officer.

   3.   The Tribunal failed to provide a rational and logical foundation to refuse my application.

8. The first ground of appeal alleges actual bias. An allegation of actual bias self-evidently is a “grave matter different in kind from finding of mere error or even wrong-headedness, whether in law, logic or approach”: see Sun v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 at 555 per Burchett J. A party who makes such an allegation “carries a heavy onus”: see SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [36] per von Doussa J. A similar contention was raised before the Federal Magistrate. He rejected the ground. It is not considered upon a reading of the Tribunal’s decision that the “heavy onus” has been discharged, nor that there is a basis for contending that the Tribunal approached the claim with anything other than an open mind.

9. The second ground, had the matter proceeded to hearing, would also in all likelihood have been dismissed.  This ground does not identify the “wrong independent information” to which reference is made.  A reading of the decision of the Tribunal does not disclose any self-evident “information” which was erroneous or not relevant to the Tribunal’s decision.

10. The third ground alleges that the Tribunal failed “to provide a rational and logical foundation” for refusing the application.  In NACB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 235, Tamberlin, Emmett and Weinberg JJ stated at [30] that “want of logic does not of itself suffice to constitute error of law, still less error of law which is jurisdictional.” See also SZGCO v Minister for Immigration and Citizenship (2007) FCA 637 at [21].

11. In any event, a reading of the decision of the Tribunal does not display any lack of logic or rationality.  The reasons for the decision of the Tribunal disclose an analysis of the law and a detailed account of the claims being advanced and the evidence adduced.  There is thereafter set forth in the reasons of the decision of the Tribunal its “findings and reasons”.  No error is apparent, let alone any lack of logic or rationality. 

12. Again, had the matter proceeded to hearing the third ground of appeal would also in all likelihood have been dismissed. 

    ORDERS

13. The Court orders that:

    1.The appeal be dismissed pursuant to Federal Court Act 1976 (Cth), s 25(2B)(bb)(ii).

    2.The Appellant to pay the First Respondent’s costs of and incidental to the appeal.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

Associate:
Dated:        16 November 2007

The Appellant:	Self represented
Counsel for the First Respondent:	B K Nolan
Solicitor for the  First Respondent	K Hooper (DLA Phillips Fox)
Date of Hearing:	16 November 2007
Date of Judgment:	16 November 2007