SZKJU v Minister for Immigration and Citizenship

THE COURT BELOW 10 On 20 March 2007, the appellant applied to the FMC for review of the Tribunal's decision. This appeal was unsuccessful. 11 Before the Federal Magistrate, the appellant raised three grounds in his amended application: 1. The Tribunal incorrectly made an adverse credibility finding by misunderstanding the appellant's evidence and failing to consider his essential claims; 2. The Tribunal failed to comply with s 424A(1) of the Migration Act 1958 ("the Act"); 3. The Tribunal failed to properly and fairly consider his claims. 12 The Federal Magistrate accepted the first respondent's submission that the Tribunal's findings as to the appellant's credibility subsumed the entirety of the appellant's claims ([12] and [13]). His Honour also accepted that there was no evidence from which to infer that the determinative issues were not put to the appellant at the third Tribunal hearing of 10 January 2007 or that the issues raised during that hearing were different to those raised in the s 424A letter of 12 January 2007. The Tribunal considered the appellant's response to the issues raised but was not satisfied with the proffered explanations. In these circumstances, the fairness of the Tribunal's findings of fact was not open to review by the Court: Attorney-General (NSW) v Quin (1990) 170 CLR 1. Nor were its appraisals of credit "information" for the purposes of s 424A(1): SZBYR v Minister for Immigration and Multicultural Affairs (2007) 235 ALR 609. His Honour also noted that the mere fact that the Tribunal had concerns about the appellant's credibility did not indicate that it approached the issues with a lack of good faith or a closed mind. 13 His Honour accordingly dismissed the matter on the grounds that no jurisdictional error on the part of the Tribunal was disclosed.

PRELIMINARY MATTERS 14 The appellant seeks prerogative relief of the kind issued in the exercise of the Court's original jurisdiction under s 39B(1) of the Judiciary Act 1903 (Cth) (as reflected in s 476A of the Act and the limited grant of original jurisdiction under that provision). This proceeding is an appeal from a decision of the FMC under s 25(1AA) of the Federal Court of Australia Act 1976 (Cth) ("FCA Act"). The appeal is in the nature of a rehearing and not an appeal in the strict sense: Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507. The question on appeal is whether the decision of the Federal Magistrate is affected by some legal, factual or other error: Allesch v Maunz (2000) 203 CLR 172 at [23]. Section 28(1) of the FCA Act provides that, on appeal, the Court may affirm, reverse or vary a decision of the FMC and make such judgment or order as in all of the circumstances is appropriate, including that the decision of the Federal Magistrate be set aside and the proceeding remitted to the Tribunal for further determination. 15 For reasons outlined below, I am not satisfied that the decision of the Federal Magistrate is affected by any error, whether as alleged or at all.

GROUNDS OF APPEAL 16 The notice of appeal filed on 27 March 2008 raised the following grounds: GROUNDS · The learned Federal Magistrate erred in law; · The learned Federal Magistrate was wrong in finding that the … Tribunal acted properly in its findings. Particulars 1. In the Tribunal's decision, I have found that the Tribunal has completely misunderstood my evidences (sic) or information mentioned above; failed to consider my above-mentioned essential claims; failed to identify and consider the relevant issues to be determined; and as a result, the Tribunal has incorrectly assessed my credibility. 2. The Tribunal failed to comply with its obligation under s 424(1) of the Act honestly and faithfully. 3. The Tribunal failed to consider my claims, properly and fairly.

ANALYSIS 17 The Notice of Appeal filed in this Court is a reproduction of the application filed in the FMC (see [10]ff above) and merely asserts that the Court below erred in law and was wrong. 18 The appellant must demonstrate that the judgment under appeal is a consequence of some legal, factual or discretionary error: Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4]; MZWVH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1016 at [10]; SZJJC v Minister for Immigration and Citizenship [2008] FCA 614 at [13]-[15]. That is the ambit of the Court's appellate jurisdiction: s 24 of the FCA Act. The appellant did not attempt to demonstrate any arguable error in the reasons of the Federal Magistrate. For the reasons outlined below, I cannot identify an appellable error. An appeal would have no prospects of success.

Ground 1 - The Federal Magistrate misunderstood the appellant's claims 19 The Tribunal did not misunderstand the appellant's claims. It found that his claims were not credible based on discrepancies between the appellant's claims and his testimony given over three separate hearings before the Tribunal. Those discrepancies provided a rational basis for the Tribunal's adverse credibility finding. The Court cannot review that finding - it is a finding of fact open on the material before the Tribunal: Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 552 and 559; Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. 20 Moreover, that finding subsumed the entirety of his claims. In those circumstances, the Tribunal was not obliged to make findings in respect to every factual contention raised by the appellant: Durairajasingham 168 ALR 407 at [67]; see also Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [68], [73]-[74] and [91]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [47]; Paul v Minister for Immigration and Multicultural Affairs (2001) 113 FCR 396 at [79]. 21 This ground of appeal is without foundation and should be dismissed.

Ground 2 - The Tribunal failed to comply with its obligation under s 424(1) of the Act honestly and faithfully 22 As noted earlier, the reason for the Tribunal's decision was its appraisal of the appellant's credibility. Section 424A(1) does not require the Tribunal to put its appraisals of the appellant's credit to him because those appraisals are not "information": SZBYR 235 ALR 609 at [18]. 23 Further, the matters that formed a basis for the credibility findings were taken from his testimony before the Tribunal and were therefore excluded by reason of s 424A(3)(b): NBKT v Minister for Immigration and Multicultural Affairs (2006) 156 FCR 419 at [41]-[64]; SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 at [16]. In any event, there was no error in sending the s 424A letter after the hearing: SZKLG v Minister for Immigration and Citizenship (2007) 164 FCR 578 at [34]. 24 This ground of appeal is also without foundation and should be dismissed.

Ground 3 - The Tribunal failed to consider my claims, properly and fairly 25 As the first respondent submitted, the Court should not entertain a challenge to the fairness of findings made by a Tribunal or its consideration of the appellant's credibility. These are matters of fact for the Tribunal. The Court should only consider whether the decision was made under the Act: ss 474 and 476A; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Durairajasingham 168 ALR 407 at [67]; Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76]. 26 This ground of appeal is somewhat difficult to conceptualise. To the extent that this ground asserts a claim of bias, a party alleging actual bias on a decision maker's part carries a heavy onus and it must be clearly proved: Jia Legang 205 CLR 507 at [35], [71] and [72]. A case of bias is seldom made out by reference solely to the reasons for decision and no inference of bias or prejudgment can be drawn from the mere fact of adverse findings in the reasons for decision: VFAB of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 102 at [21]; SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 668 at [38]; WABC of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 286 at [3]. 27 Further, it does not appear to be a claim of apprehended bias. Even if it was a claim of apprehended bias, it would fail. It would fail because it is not sufficient for the appellant to have a "vague sense of unease or disquiet" about the manner in which the decision was made (Jones v Australian Competition and Consumer Commission (2002) 76 ALD 424). Rather, it would require the possibility that "a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct" could form an apprehension of bias: Re Refugee Review Tribunal; Ex parte H (2001) 179 ALR 425 at 426. There is no basis for such an allegation in the present case. 28 Finally, at the hearing, the appellant stated that the fact that there had been three Tribunal hearings established, or at least supported, his contention that he was a refugee entitled to a protection visa. That submission is rejected. To take just one example, on 6 September 2006, the decision of the second Tribunal was quashed by consent. The order of the Court noted that the First Respondent accepted that the application had to be allowed for the reasons contained in the Full Court decision of SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. There is no basis for contending, whether as alleged or at all, that the fact that the appellant has attended three separate Tribunal hearings itself provides support for his claim for refugee status.

CONCLUSION 29 I would dismiss the appeal and order the appellant to pay the first respondent's costs of the appeal fixed in the sum of $1,500. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.

Associate: Dated: 30 May 2008 Counsel for the Appellant: The appellant appeared in person

Counsel for the First Respondent: Mr James Mitchell