SZQCV v Minister for Immigration and Citizenship

[2012] FCA 441

FEDERAL COURT OF AUSTRALIA

SZQCV v Minister for Immigration and Citizenship [2012] FCA 441

Citation:		SZQCV v Minister for Immigration and Citizenship [2012] FCA 441
Appeal from:		SZQCV v Minister for Immigration & Anor [2011] FMCA 984
Parties:		SZQCV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 11 of 2012
Judge:		REEVES J
Date of judgment:		5 March 2012
Date of hearing:	5 March 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	5
Counsel for the Appellant:	The Appellant appeared in person
Counsel for the First Respondent:	Mr T Reilly
Solicitor for the First Respondent:	DLA Piper Australia
Counsel for the Second Respondent:	The Second Respondent did not appear

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 11 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQCV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE OF ORDER:	5 MARCH 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs of the appeal.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 11 of 2012

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZQCV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	REEVES J
DATE:	5 MARCH 2012
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate given on 9 December 2011.  The appeal to this Court is confined to one ground, as follows:  “The Court made a wrong Judgement on my credibility”.

2. From this sole ground, it appears that the appellant has abandoned the complaint made in her sole ground of review before the Federal Magistrates Court, viz her complaint that her hearing before the Tribunal was not conducted in private contrary to s 429 of the Migration Act 1958 (Cth) (the Act). Despite this issue not being raised in the notice of appeal to this Court, in her oral submissions this morning, the appellant again asserted that the presence of security guards at her hearing before the Tribunal was unfair. From this, I assume she was suggesting that their presence was in breach of that provision of the Act to which I have just referred. This issue can be disposed of briefly. It is clear from the High Court decision in SZAYW v Minister for Immigration and Multicultural and Indigenous Affairs (2006)230 CLR 486; [2006] HCA 49 that if the presence of security guards is reasonably required at a tribunal hearing, that does not offend the requirements of s 429 of the Act. The appellant was unable to persuade the Federal Magistrate that the presence of security guards at her Tribunal hearing was not reasonably required and I can find no error in the Federal Magistrate’s reasons for decision on that aspect. In her oral submissions this morning, the appellant also attempted to raise a challenge to the Tribunal’s rejection of the documents she put before it. She said, in summary, that it was unfair to reject those documents as fraudulent. This issue was not raised before the Federal Magistrate and it is therefore impossible for the Federal Magistrate to have made an error about that issue.

3. It is the correction of error in the Federal Magistrate’s decision with which this Court is concerned.  But even if the issue was raised before the Federal Magistrate, having read the Tribunal’s decision I can see no error in its treatment of the documents that were put before it, having regard to what the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63. Turning then to the ground of appeal that the appellant stated in her notice of appeal to this Court. If the word “Court” is a reference to the Federal Magistrates Court, then this ground displays a fundamental misunderstanding of the Federal Magistrates Court’s role on an application for judicial review of a tribunal decision.

4. The role of the Federal Magistrates Court on such a review is to review the decision concerned to detect whether it is infected by jurisdictional error.  The Federal Magistrates Court has no role in reviewing the decision for any lesser error, much less review it on its merits.  The Full Court of the Federal Court summarised the position on this matter in the decision of Minister for Immigration and Citizenship v SZNPG (2010) 115 ALD 303; [2010] FCAFC 51, which is referred to in the Minister’s submissions. So “a wrong Judgement on my credibility”, to which this sole ground of appeal is directed, is quintessentially a matter that goes to the merits of the Tribunal’s decision, which could not be reviewed by the Federal Magistrates Court and certainly cannot be reviewed by this Court.

5. If the word “Court” is really a reference to the Tribunal, it follows from these reasons that it was not open to the Federal Magistrates Court to review a credibility finding of the Tribunal.  So for all these reasons, this appeal must be dismissed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.

Associate:
Dated:       1 May 2012