The Appeal in this Court
15 The notice of appeal contains a number of grounds of jurisdictional error asserted against the Tribunal but fails to relevantly identify any error in the decision or approach of the court below.
16 Ground 1 of the notice of appeal alleges that the appellants were denied procedural fairness because the Tribunal was biased and applied a 'technic' (sic) for testing their credibility. The appellants have made no attempt to comply with the requirement that an allegation of bias is a serious allegation which must be firmly and distinctly made and clearly proven: Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J. There is no evidence before the Court to support such an assertion. The Tribunal is plainly entitled to exercise some control over the direction of its hearing by asking questions. Proceedings before the Tribunal are not adversarial but inquisitorial: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S154/2002 (2003) 201 ALR 437 at [57]. The Tribunal is entitled to ask questions to satisfy itself of matters: NADH v Minister for Immigration [2004] FCAFC 328 at [124] to [125]; Re Minister for Immigration; Ex parte Epeabaka (2001) 206 CLR 128 at [52]. Findings of fact, including findings in relation to credit, are a matter solely for the Tribunal: NADR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 167 at [9]. This ground cannot be established.
17 This ground also makes a generalised complaint that the Tribunal's decision was unjust because it was made without taking into account the full gravity of the appellants' circumstances and the consequences of the decision. Again, there is no proper basis for this complaint which effectively seeks to take issue with the merits of the Tribunal's decision. No error is disclosed.
18 Grounds 2 and 3 of the notice of appeal respectively allege that the Tribunal's decision was an improper exercise of power and involved jurisdictional error including an incorrect interpretation of the applicable law to the facts of the case. There are three sets of particulars listed under these grounds.
19 The particulars in ground 3(a) assert that the Tribunal did not comply with the mandatory obligation contained in s 424 of the Act. Section 424 of the Act provides that the Tribunal may seek any additional information it considers relevant, although the provision has no meaningful connection to the facts of the present case.
20 The particulars in ground 3(b) effectively repeat the appellants' complaint that the Tribunal referred to case authorities without explaining their relevance. Relevantly, the information cited in para 1 of page 3 of the Tribunal's decision refers to cases that have considered the definition of 'refugee' in Article IA(2) of the Refugees Convention. There is no breach of any statutory provision or obligation by the Tribunal in failing to explain this information to the appellants. His Honour below found, correctly, the reference to case authorities did not constitute 'information' for the purposes of s 424A of the Act and the Tribunal had no obligation to provide particulars of that information to the appellants. Accordingly, this ground cannot succeed.
21 The particulars in ground 3(c) amount to no more than a restatement of general principles relating to, and examples of, jurisdictional error.
22 Ground 4 of the notice of appeal is an allegation that the appellants were denied natural justice but no particulars are provided to make this allegation meaningful.
23 Ground 5 repeats the complaint that the Tribunal decision was unjust. This ground is addressed in [17] above and effectively amounts to merits review. No error is established on the part of his Honour or the Tribunal in this regard.
24 Ground 6 alleges that the Tribunal had 'no other substantive material or evidence to justify its decision' but there are no proper particulars or evidence to support this complaint. In any event, the Tribunal gave comprehensive reasons for its decision which reveal no error and it was open to the Tribunal to prefer the independent country information or simply not accept the appellants' claims: McPhee v S Bennett Ltd (1934) 52 WN (NSW) 8, Jordan CJ at 9, approved by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [355]. Relevantly, s 65(l) of the Act:
'does not require the decision-maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather, it requires a refusal if the decision-maker is not affirmatively satisfied that the criteria for the visa in question have been satisfied.'
(SJSB v Minister for Immigration [2004] FCAFC 225 per Ryan, Jacobson and Lander JJ at [15]).
25 The Tribunal's findings were open to it for the reasons given and findings on credibility are matters of fact for the Tribunal alone and should not be disturbed by the Court: Re MIMA; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].
26 Ground 7, that 'Federal Magistrate FM Burnett failed to remit the matter back to the Tribunal for reconsideration according to the law as the tribunal failed to comply with the mandatory obligations and also the lawful effect while making the decision of the review application', is not a proper ground of appeal.
27 As the reasons of his Honour indicate a comprehensive examination of the appellants' case and reveal no error, the appeal must be dismissed with costs.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.