SZKGP v Minister for Immigration and Citizenship

[2008] FCA 293

FEDERAL COURT OF AUSTRALIA

SZKGP v Minister for Immigration and Citizenship [2008] FCA 293

SZKGP v Minister for Immigration & Anor [2007] FMCA 1756 upheld

SZKGP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2272 OF 2007

GYLES J
4 MARCH 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2272 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKGP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GYLES J
DATE OF ORDER:	4 MARCH 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent.

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 2272 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKGP
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GYLES J
DATE:	4 MARCH 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The notice of appeal to this Court in this case is not helpful, however the appellant has produced some written submissions to which he has spoken and which clarify the very broad grounds of appeal which are, in themselves, not sufficiently detailed to involve a proper ground of appeal.  

2. It is clear that there are three matters which have been particularly relied upon.  The first was the failure of the Refugee Review Tribunal (the Tribunal) to adjourn the hearing.  That topic was dealt with by the learned Federal Magistrate in SZKGP v Minister for Immigration & Anor [2007] FMCA 1756 at [23]–[27]. That seems to me to be a fair statement of the factual underpinning of the point and no error has been pointed to in the manner in which the Federal Magistrates Court dealt with the point. The time involved, that is between early October 2006 and early December 2006, approximately two months between the notification and the hearing, is by no means a peremptory period and no particular basis was shown which would have compelled an adjournment.

3. The second complaint in order of chronology was the attitude of the Tribunal at the hearing.  This point was dealt with by the learned Federal Magistrate at [28]–[40], although the focus of that was fairly general.  The appellant now wishes to pursue a case that turns upon the manner in which he was questioned and the emphasis upon particular questions of timing and dates.  He says that he was upset by the Tribunal’s questioning, particularly its doubting his veracity, and a complaint is made that the Tribunal member’s attitude was unprofessional. 

4. It is not clear at all that the matter was put quite in that way to the Federal Magistrates Court.  The learned Federal Magistrate pointed out that there was no transcript tendered of what took place before the Tribunal and, therefore, claims of bias or apprehension of bias, lack of good faith and abuse of power could not be sustained.  The appellant says that he has, and indeed had, access to the tapes of what took place before the Tribunal.  When he was asked whether he had put this forward he initially said that he thought it had been referred to in his written submission.  The production of the written submissions does not bear that out.  Those written submissions are not part of the Court Book.  They can be marked for identification 1 and regarded as part of the Court Book.  This point not having been clear prior to this morning, there is no formal record of what took place before the Federal Magistrates Court here, but it has been drawn to my attention that a procedural direction was made well in advance of the hearing that obliged the appellant to file evidence and a transcript of what took place before the Tribunal if it was sought to rely upon what took place at the Tribunal.  That was not done.

5. I have also looked at the amended application before the Federal Magistrates Court and to the affidavits which were filed in support.  In none of those can I see a direct reference to bias in the attitude of the Tribunal member, and I see no reference to any evidence to support it, either by way of transcript or tapes.  The appellant explains this by saying that he is not a lawyer, he was unrepresented and he did not know how to produce evidence.  That may be correct, although bearing in mind the procedural direction which had been given and the obvious relevance of tapes if this point were to be made, there must be some considerable doubt about that conclusion.

6. I have explained to the appellant that this Court sits on appeal from the Federal Magistrate and that he needs to establish appellable error on the part of his Honour in this respect.  It is difficult, if not impossible, to do so where the point was not raised before the Federal Magistrate in a satisfactory manner.  Thus, it seems to me that this second basis of attack must also fail.

7. The third basis was the refusal of an extension of time within which to respond to a letter from the Tribunal to the appellant after the hearing.  An extension of two weeks was sought.  That was refused, although I should point out that a de facto adjournment was granted because of the Tribunal being prepared to consider matters up to approximately one week after the original deadline.

8. I can understand the concern of the appellant about this because the request was made shortly before Christmas and it was to be replied to early in January.  It is a holiday period which does complicate matters and it was likely that, if there were to be any sensible reply, it may have involved obtaining material from overseas, as he says he pointed out.  However, the learned Federal Magistrate examined this complaint very carefully between [13] and [22] of his Honour’s reasons.  I can see no appellable error in that examination of the issue.  Minds might differ as to the result but I can see no error in principle in the manner in which it was considered, nor is the result so startling as to indicate some unstated error by the Federal Magistrates Court.

9. Therefore, in my opinion, the three separate bases upon which the matter has been pressed today all fail.  No error has been shown in the decision of the Federal Magistrates Court and the appeal is dismissed.  The appellant is to pay the costs of the first respondent. 

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

Associate:

Dated:        10 March 2008

The Appellant appeared in person
Counsel for the First Respondent:	Ms L Clegg
Solicitor for the First Respondent:	Sparke Helmore

Date of Hearing:	4 March 2008
Date of Judgment:	4 March 2008