SZITB v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The present proceeding is an appeal from a decision of the Federal Magistrates Court given on 1 August 2007, dismissing an Application seeking to review a decision of the Refugee Review Tribunal. 2 The Tribunal's decision affirmed the decision of a delegate of the Minister to not grant the Appellant a protection (Class XA) visa. The decision of the Tribunal, the subject of review by the Federal Magistrates Court, was the second decision of that Tribunal in relation to the now Appellant. The Tribunal previously conducted two hearings, one on 22 November 2005, and a second on 13 December 2005. 3 The Tribunal handed down its decision on 21 March 2006. That decision was set aside on 2 August 2006. Upon the proceedings being remitted, a differently constituted Tribunal conducted a further hearing on 5 October 2006 and handed down its decision on 21 November 2006. 4 That decision of the Tribunal was the subject of the decision of the Federal Magistrates Court now under appeal before this Court. The jurisdiction of this Court to hear this appeal is that conferred by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth). That appellate jurisdiction may be exercised by a single judge: see s 25(1AA)(a). On the hearing of this appeal the Appellant appeared unrepresented, but with the assistance of a court interpreter.

Grounds of appeal 5 The Notice of Appeal identifies the grounds of appeal as follows: 1. The Federal Magistrates erred in law; 2. The Federal Magistrates was wrong in finding that the Refugee Review Tribunal ("the Tribunal") acted properly in its findings. A number of "particulars" are thereafter provided. The particulars provided fall essentially into two categories. 6 The first category seeks to focus attention upon the Tribunal's adverse findings as to the Appellant's credit. The Appellant, in her particulars, sets forth an account or an explanation of the circumstances in which two different versions of relevant facts had been presented for consideration. The two different claims, she asserts, were the source of her "problems". Those particulars provide as follows: 3. There were two claims which had been different from each other before the Tribunal. One was the claim that had been prepared and submitted to the department by Ms Weining Qian who was a registered migration agent from Eternity International. The other was the claims that I had personally given to the Tribunal. As I have claimed, it was a start of many problems, including my credibility, concerning my application. 4. Many significant evidences could easily prove that I was really innocent in preparing those claims, which were obviously fabricated to the department. At least, I was unable to speak or to understand any English and I did not have any necessary knowledge about relevant legislations. It is no doubt that I have been cheated by Ms Weining Qian, no matter whether I complained about her to the Migration Agent's Registration Authority or not. 5. However, the Tribunal would rather assess my credibility or made its findings relied on the claims which had in fact been prepared and submitted by Ms Weining Qian, than did so based on the evidence given by myself personally. So it is no doubt that the Tribunal incorrectly assessed my credibility or the Tribunal made its findings based on incorrect materials, or the Tribunal ignored importance evidences in relation to my review Application. To those particulars may be added the following: 2. The first issue is that the Tribunal incorrectly assessed my credulity or the Tribunal made its findings based on incorrect materials, or the Tribunal ignored importance evidences in relation to my review Application. 6. An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that effects the exercise or purported exercise of the Tribunal's power: Craig v South Australia [[1995] HCA 58, 184 CLR 163] per McHugh, Gummow and Hayne JJ at [179]…. It is obviously that the Tribunal, in my case, exceeded its powers and thus committed a jurisdictional error. During the course of the hearing of this appeal, the Appellant identified the "important evidences" referred to in her particulars as being two statutory declarations, the first of which was affirmed on 24 January 2006, and the latter affirmed on 25 October 2006. The "wrong issue" was identified as simply being "material which has been substantially challenged". The "relevant material" to which reference is made in the particulars was identified as "the genuine Application materials". 7 The second category of particulars is that set forth in the final particular provided in the Notice of Appeal, being: 7. The second issue is in relation to bias. In my case the Tribunal did not bring an independent mind to assess my credibility or my claims or my evidences. Instead, the Tribunal made its findings or assess my credibility based on nothing but its unwarranted assumption. Therefore, an apprehended bias has been established: SZILP v MIAC & Anor [2007] FMCA 592… To that particular may be added two further contentions, namely: 1. a contention that the Tribunal was "induced by fraud"; and 2. a contention that "the interpreter at the hearings made a lot of mistakes and put a lot of mistakes". 8 None of the grounds of appeal have been made out and the appeal should therefore be dismissed. Each of the purported grounds, it is considered, is but an impermissible attempt to challenge the factual findings as made by the Tribunal. Each of the particulars has been separately considered, however no appealable error has been demonstrated.