CONSIDERATION
17 The only basis upon which an appeal lies from a privative clause decision within the meaning of s 474 of the Act is that of jurisdictional error of the Tribunal: S157/2002 v Commonwealth (2003) 211 CLR 476.
18 In my view the grounds of appeal stated in the appellant's Notice of Appeal are without substance. No error in the decision of the Federal Magistrate has been demonstrated by the appellant. I form this view for the following reasons.
19 In relation to the first ground of appeal it is clear that the Tribunal had informed the appellant that it was unable to make a decision in his favour on the basis of the material before it. The Tribunal observed in its reasons for decision that the appellant neither sent further material, nor took the opportunity to attend a hearing and present his claims orally. The learned Federal Magistrate correctly pointed out that a visa must only be granted where the Minister is satisfied the prescribed criteria has been fulfilled (SZGFG v Minister for Immigration and Citizenship [2007] FCA 483). Further, it is clear that it is for the applicant before the Tribunal to make his or her case to the Tribunal - the Tribunal is under no obligation to make the case for the applicant (Abebe v The Commonwealth (1999) 197 CLR 510 at 576). The Tribunal made a decision based on such material as was before it, and the appellant cannot now claim that the Tribunal erred in making that decision.
20 In my view the appellant's first ground of appeal is not substantiated.
21 The appellant's second ground of appeal is identical to the first ground of review before Jarrett FM. In that case his Honour said at [12]:
The first ground of the current application perhaps highlights the difficulty for the applicant, namely that there was no evidence or other materials to justify the making of the decision. In my view there was no evidence or other materials before the Refugee Review Tribunal that would justify making a decision other than the decision that it made in the circumstances of this case.
(BRGAD v Minister for Immigration and Citizenship [2008] FMCA 734)
22 I agree with the comments of Jarrett FM. The difficulty faced by the appellant in establishing jurisdictional error in relation to this ground of appeal is that the lack of evidence before the Tribunal was the very reason why the application was dismissed. This ground of appeal is not an allegation of jurisdictional error. Instead, the appellant is seeking to reopen the decision of the Tribunal. The Court cannot engage in review of the merits of the appellant's case: NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10].
23 In my view the appellant's second ground of appeal is not substantiated.
24 In relation to the appellant's third ground of appeal, the appellant has not provided any particulars to explain this ground or as to why the Tribunal's decision was unreasonable. In any event, to the extent that the appellant claims unreasonableness in accordance with the principles articulated in Associated Provincial Picture Homes Ltd v Wednesbury Corporation [1948] 1 KB 223, I note that the Full Court has found that "unreasonableness" does not constitute jurisdictional defect (see Andary v Minister for Immigration and Multicultural Affairs [2003] FCAFC 211 and QAAA of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2007] FCA 1918). Accordingly, the appellant's third ground of appeal is not substantiated.
25 Finally, I consider that the oral submissions of the appellant today constituted an attempt to re-agitate his claims before the Tribunal. It is not the function of this Court to review the merits of the Tribunal's decision.
26 I am unable to identify any error in the decision of the learned Federal Magistrate below. Accordingly, the appropriate order is to dismiss the appeal with costs.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.