SZKJI v Minister for Immigration and Citizenship
[2010] FCA 546
•10 May 2010
FEDERAL COURT OF AUSTRALIA
SZKJI v Minister for Immigration and Citizenship [2010] FCA 546
Citation: SZKJI v Minister for Immigration and Citizenship [2010] FCA 546 Appeal from: SZKJI v Minister for Immigration and Citizenship [2009] FMCA 1252 Parties: SZKJI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 3 of 2010 Judge: SPENDER J Date of judgment: 10 May 2010 Legislation: Migration Act 1958 (Cth) s 424B
Migration Regulations 1994 regulation 4.35ACases cited: SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 referred toDate of hearing: 10 May 2010 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 15 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondents: Ms L Clegg Solicitor for the Respondents: Sparke Helmore
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 3 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZKJI
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SPENDER J
DATE OF ORDER:
10 MAY 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant to pay the costs of the first respondent, fixed in the sum of $4,200.00.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 3 of 2010
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZKJI
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
SPENDER J
DATE:
10 MAY 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an appeal from the decision of Scarlett FM on 17 December 2009: SZKJI v Minister for Immigration and Citizenship [2009] FMCA 1252. The respondent has filed a notice of contention asserting that the Court below erred in concluding at [83] that there was a departure from s 424B of the Migration Act 1958 (Cth) (the Migration Act) and regulation 4.35A of the Migration Regulations 1994.
It is unnecessary to consider that notice of contention, even though the allegation on which it is based results from the Federal Magistrate accepting a concession by the Minister that there had been a departure from s 424B of the Migration Act and that regulation. It is unnecessary to consider the notice of contention because no ground of appeal is directed at that question, nor is there any challenge to the finding by the Federal Magistrate that there had been no denial of procedural fairness.
The appellant’s Notice of Appeal contains six grounds. In his oral submissions to this Court, he has essentially repeated the submissions made to the Federal Magistrate. His complaints are essentially that the Refugee Review Tribunal did not consider his case fairly, independently, or reasonably and that, in its dealing with his case, it was biased. As I will shortly indicate, this appellant, like many others, misconceives the nature and basis of an appeal to this court.
It is not competent for the Federal Magistrates Court nor for the Federal Court to be concerned with merits review. The complaints of the appellant as expressed in his grounds of appeal and repeated in his oral submissions to this Court impermissibly seek merits review of the decision of the Refugee Review Tribunal.
The appellant is a citizen of the People’s Republic of China who arrived in Australia on 1 March 2006. On 7 April 2006, he lodged an application for a protection visa with the then Department of Immigration and Multicultural and Indigenous Affairs. The application for a protection visa was refused on 1 July 2006. On 8 February 2007, the Refugee Review Tribunal (the Tribunal) affirmed the decision not to grant the appellant a protection visa.
On 26 November 2007, the Federal Magistrates Court dismissed the application but on 6 November 2008, Gray J, in the Federal Court, by consent, set aside the decision and remitted the matter to the Tribunal. The order made by consent relied upon the identification by the Minister of a breach of s 425 of the Migration Act based on the decision in SZHKA v Minister for Immigration and Citizenship (2008) 172 FCR 1.
On 5 August 2009, the Tribunal, differently constituted, affirmed the decision of the delegate. The Tribunal’s decision reveals an exposition of the appellant’s claims. It set out the appellant’s written claims, the evidence given by him at the various oral hearings, and the responses to the various s 424A letters that had been sent to the appellant by the Tribunal. The Tribunal described the contents of a number of visitor visa applications that had been made by the appellant prior to his application for a protection visa.
The findings and reasons of the Tribunal indicate that the Tribunal did not believe the appellant, finding that he was not a witness of truth and that he had not given a truthful account of his past experiences in China. The appellant objects to these findings and contends that the Tribunal did not approach his case fairly, independently or reasonably.
There were four grounds of appeal to the Federal Magistrate, each of which generally claimed that the Tribunal failed to consider his claims and the evidence fairly and properly, and that there was a reasonable apprehension of bias in each of the findings by the Tribunal. The Federal Magistrate found that the appellant did not demonstrate anything that would lead a fair-minded lay observer, properly informed as to the nature of the proceedings and the matters in issue, reasonably to apprehend that the Tribunal Member did not bring an impartial mind to the resolution of the questions to be decided. Scarlett FM found there was no apprehended bias.
The first ground of appeal to the Federal Magistrate claimed that the Tribunal did not investigate his claims “independently, fairly, and properly” because the appellant disagreed with the Tribunal’s decision about his ownership of real estate, and the decision that this ownership was inconsistent with his claim to have been dismissed from his employment and his inability to earn sufficient income. In this respect, Scarlett FM held that the appellant was seeking a merits review which was not permissible on judicial review, relying on Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.
The second ground claims that the Tribunal failed to consider his evidence “thoroughly, fairly, and properly” because the appellant disagreed with the Tribunal’s finding that his failure to apply for a visitor visa for more than 12 years after he was dismissed from his employment was inconsistent with his claimed circumstances in China. The Federal Magistrate, again, dismissed this ground as another attempt to obtain a merits review.
The third ground claimed that the Tribunal failed to consider the appellant’s evidence “fairly and properly” and made its finding “illogically and unreasonably” when it found that the false information contained in his four visitor visa applications suggested that he and his sister demonstrated a preparedness to provide false information leading the Tribunal to doubt the appellant’s credibility. The Federal Magistrate held that it was open on the evidence for the Tribunal to make this finding, and that the appellant had not demonstrated any illogicality in the Tribunal’s reasoning, even if that were sufficient to establish jurisdictional error.
In relation to all of the grounds of appeal to this Court, it is helpful to refer to the observations of Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59, where the Chief Justice said at paragraph 5:
As was pointed out in Minister for Immigration v Eshetu, to describe reasoning as illogical, or unreasonable, or irrational, may merely be an emphatic way of expressing disagreement with it. If it is suggested that there is a legal consequence, it may be necessary to be more precise as to the nature and quality of the error attributed to the decision-maker, and to identify the legal principle or statutory provision that attracts the suggested consequence.
The appellant’s fourth ground to the Federal Magistrate was that the Tribunal had made a finding “based on completely incorrect information or incorrect evidence” or evidence that had been “misstated by the Tribunal.” This was also dismissed by the Federal Magistrate. Again, according to the Federal Magistrate, there was no demonstration of any evidence of misstatement or incorrect information and, in the view of the Federal Magistrate, this was another attempt at a merits review.
It is unfortunate that this appeal has been conducted on the misapprehension that it within the power of the Federal Court to engage in a merits review of the decision of the Tribunal. The findings, particularly findings as to credibility, are matters for the Tribunal and it is incompetent for this Court to undertake a merits review of the decision of the Tribunal. Since that is what, in my assessment, the grounds of appeal to this Court invite, the appeal must be dismissed.
I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate:
Dated: 31 May 2010
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