SZLBK v Minister for Immigration and Citizenship

[2008] FCA 358

FEDERAL COURT OF AUSTRALIA

SZLBK v Minister for Immigration & Citizenship [2008] FCA 358

SZLBK v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2088 of 2007

GOLDBERG J
25 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2088of 2007

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLBK
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

25 FEBRUARY 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal against the decision of the Federal Magistrate on 2 October 2007 be dismissed.

2.The Applicant pay the First Respondent’s costs of and incidental to the application for leave to 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 2088 of 2007

ON APPEAL FROM A DECISION OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLBK
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GOLDBERG J
DATE:	25 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applies for leave to appeal from a decision of the Federal Magistrates Court on 2 October 2007 dismissing the application to review a decision of the Refugee Review Tribunal (“the Tribunal”) on 19 June 2007.  The application to the Tribunal was dismissed. 

2. The decision of the Federal Magistrates Court was an interlocutory decision, that is, in lay terms, an intermediate decision.  No appeal as of right lies from an interlocutory decision, but an applicant has to seek leave before such an appeal can be launched.  The principles in relation to granting leave to appeal from interlocutory decisions are well known.  In substance, an applicant has to establish that the decision of the lower court is attended with sufficient doubt that it ought to be reviewed and an applicant also has to show that a substantial injustice will occur were the decision of the lower court ultimately shown to be wrong.  I do not sit to hear the applicant’s claim afresh.  My primary task is to determine whether the Federal Magistrate’s decision is attended with sufficient doubt that it should be reviewed.

3. The Federal Magistrate dismissed the application under O 44 r 12(1)(a) of the Federal Magistrates Court Rules on the basis that the applicant had not raised an arguable case for the orders and relief he claimed. In his reasons for judgment the Federal Magistrate summarised the material that was before the Tribunal and summarised the Tribunal’s reasons and decision. In substance, the Tribunal concluded that the applicant was not a witness of truth and it explained why this was so, in particular relating to the applicant’s explanation for obtaining a passport in his own name and being able to leave China free from any trouble. The Federal Magistrate was unable to identify any arguable ground of jurisdictional error arising from the Tribunal’s procedures or reasons and the Federal Magistrate explained in some detail why he had reached that conclusion.

4. The application before the Federal Magistrate was based substantially on three grounds.  The first ground was that the Tribunal did not properly consider the applicant's claims.  The Federal Magistrate was unable to identify any claim that was not addressed by the Tribunal and considered that the Tribunal's reasoning was open to it on the material before it.  He could not see any arguable basis for finding that the Tribunal did not consider the matter according to law.  The second ground of complaint was that the country information relied on by the Tribunal was out‑of‑date or based on hearsay.  The Federal Magistrate could see no arguable jurisdictional error in the use which the Tribunal made of that information.  The third ground of complaint was that the Tribunal failed to consider information provided by the applicant in response to the Tribunal’s s 424 letter.  It was submitted by the applicant to the Federal Magistrate that the Tribunal failed to understand his explanation and failed to consider fully the information provided. 

5. The Tribunal considered the applicant's explanations but rejected them.  The Tribunal specified the reasons for rejection of those explanations and the Federal Magistrate concluded that those reasons were rational and open to the Tribunal on the material before it.  I do not consider that the Federal Magistrate’s reasons are attended with sufficient doubt such that the applicant should be given leave to appeal against the Federal Magistrate’s dismissal of his application on the basis that he was not satisfied that the applicant had raised an arguable case for the relief claimed.  I am satisfied that on the material before him the Federal Magistrate was entitled to reach that conclusion.

6. In his affidavit in support of his application for leave to appeal and in his draft notice of appeal, the applicant said that the Tribunal showed bias against him and failed to consider his claims.  There is absolutely no evidence of any such bias by the Tribunal and, indeed, when I pressed the applicant to articulate his bias claim it was apparent that he was not submitting that there was bias in the sense known to the law, but rather that the Federal Magistrate had not accepted his explanation in relation to the passport issue.

7. In his affidavit in support of his application for leave, the applicant argued that the Federal Magistrate did not give him an opportunity to argue his case and that it was dismissed without a hearing.  There is no foundation whatsoever for such a claim.  The applicant appeared before the Federal Magistrate, was given an opportunity to present and argue his case, and he was given a full hearing.  When I pressed the applicant on this ground he acknowledged that the Federal Magistrate gave him a hearing but that the Federal Magistrate did not listen to his explanations.  In substance, what the applicant was complaining about was that the Federal Magistrate did not decide the case on the merits in his way. 

8. It is not open to me to re‑visit the issue of the merits as such.  That is particularly the province of the Tribunal.  Before me today the applicant submitted that the Tribunal did not understand his claims, but that ground of appeal is not sustainable.  In short, the applicant is complaining that the Tribunal did not decide the case his way.  The findings reached by the Tribunal were open to it on the material before it and it is not for me to engage in a review of the merits.  It is not open for me today, except in exceptional limited circumstances, to allow the applicant to produce material before me which was not before the Tribunal or the Federal Magistrate.  He submitted that the material was new material, but there is no basis which I can discern upon which such material could be presented to me. 

9. The applicant also submitted that the Tribunal had made its decision on the basis of personal feelings and not on the evidence, but such a complaint is not made out on the material before me. 

10. In all those circumstances, I have reached the conclusion that the Federal Magistrate’s decision is not attended with sufficient doubt such that it ought to be reviewed or made the subject of appeal.  The order of the court will be that the application for leave to appeal against the decision of the Federal Magistrate on 2 October 2007 be dismissed.

11. I will further order that the applicant pay the first respondent’s costs of and incidental to the application for leave to appeal.

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

Associate:

Dated:        17 March 2008

Counsel for the Appellant:	the Applicant appeared in person
Counsel for the Respondent:	Ms E Baggett
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	25 February 2008
Date of Judgment:	25 February 2008