SZKKB v Minister for Immigration and Citizenship

[2007] FCA 1883

FEDERAL COURT OF AUSTRALIA

SZKKB v Minister for Immigration and Citizenship [2007] FCA 1883

SZKKB v MINISTER FOR IMMIGRATION AND REFUGEE REVIEW TRIBUNAL
NSD 1674 OF 2007

SPENDER ACJ
23 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1674 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SZKKB
Appellant

AND:

MINISTER FOR IMMIGRATION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER ACJ
DATE OF ORDER:	23 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the costs of the first respondent, fixed in the sum of $3,000.00.

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 1674 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

SZKKB
Appellant

AND:

MINISTER FOR IMMIGRATION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER ACJ
DATE:	23 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Scarlett FM dismissing an application for review of a decision of the Refugee Review Tribunal (the Tribunal), affirming a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), to refuse to grant to the appellant a protection visa. 

2. The decision of the Tribunal was based on an adverse assessment of the appellant’s credibility. 

3. The appeal to the Federal Magistrate resulted in a conclusion by Scarlett FM that the procedure and the reasons for judgment of the Tribunal did not establish jurisdictional error. 

4. The Notice of Appeal to this court raises one ground only, namely the Federal Magistrate failed to find the Tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth), and therefore fell under jurisdictional error.

5. The ground of appeal is followed by this sentence:

   There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A (1).

6. When I asked the appellant what was the adverse information, she indicated that she had told the Tribunal what had occurred to her in India and the Tribunal did not understand her well.  The appellant also indicated that she was not happy with the correctness of the Tribunal’s decision. 

7. The appeal to this Court cannot challenge findings of fact by the Tribunal where there is material on which the Tribunal could reach that finding.  This Court cannot review the merits of the Tribunal’s decision.  There is no error of law, let alone jurisdictional error, in the Tribunal making a wrong finding of fact. 

8. The Notice of Appeal from the Federal Magistrates Court is unparticularised and in any event, no error is revealed in his Honour’s judgment.  No jurisdictional error has been revealed either in the proceedings in the Federal Magistrates Court or in the Tribunal. 

9. For these reasons the appeal must be dismissed.

10. It is appropriate in this case for the costs to be fixed to save unnecessary extra expense.  The Minister, through his counsel, seeks that the costs be fixed in the sum of $3,000.00.   This figure is both fair and appropriate, given the history of this matter.

11. The orders of the court are that the appeal is dismissed, and the appellant is to pay the costs of the first respondent, fixed in the sum of $3,000.00

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Spender .

Associate:

Dated:        28 November 2007

Appellant appeared in person by telephone
Counsel for the  First Respondent:	T Reilly
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	23 November 2007
Date of Judgment:	23 November 2007