FEDERAL COURT OF AUSTRALIA

SZGNC v Minister for Immigration and Citizenship [2007] FCA 1370

SZGNC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD1009 OF 2007

SPENDER J

15 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal be dismissed.

2.                  The applicant pay the first respondent’s costs of and incidental to the application, fixed in the sum of $1,250.00.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a judgment of Smith FM given on 15 May 2007, where his Honour dismissed the applicant’s application to the Federal Magistrates Court pursuant to Rule 44(12) of the Federal Magistrates Court Rules on the basis that the application did not raise an arguable case for the relief claimed.  His Honour also ordered the applicant to pay the first respondent’s costs in the sum of $1,200.00

2                     The present application is the latest in a lengthy history of litigation. 

3                     The applicant arrived in Australia on 5 March 2004. He applied for a Protection Visa on 29 November 2004.  That application was refused by a delegate of the Minister on 19 January 2005.  He then sought review to the Refugee Review Tribunal (the Tribunal) on 22 February 2005.   This was the first application for review to the Tribunal. 

4                     On 18 April 2005, the Tribunal affirmed the delegate’s decision.  When the applicant sought review of that first Tribunal decision by the Federal Magistrates Court,  the Court, on 30 October 2006, issued consent orders setting aside the first decision of the  Tribunal and remitting the matter to the Tribunal to be determined according to law.

5                     On 21 December 2006, the applicant appeared before the Tribunal on the second occasion.  On that same day, the Tribunal affirmed the subsequent decision of the delegate. 

6                     On 22 February 2007, the applicant applied to the Federal Magistrates Court seeking review of that decision.  On 15 May 2007, the matter was listed for a show cause hearing and Smith FM dismissed the applicant’s application on the basis that, in his Honour’s judgment, it did not raise an arguable case for relief.

7                     On 4 June 2007, the applicant made for an application for leave to appeal to this Court.  The decision of Smith FM on 15 May 2007 is interlocutory.  It does not conclude the fate of the particular application - the rights of the parties inter se.  The High Court indicated that decisions of this kind are interlocutory in Hall v The Nominal Defendant (1966) 117 CLR 423. 

8                     Jurisdiction is conferred on this Court to hear appeals from the Federal Magistrates Court by s 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) (the Federal Court of Australia Act).  Section 24(1A) provides that an appeal should not be brought from a judgment that is interlocutory unless the Court or a Judge grants leave. 

9                     An application for leave to appeal may be heard and determined by a single judge or by a Full Court (s 25(2)(a) of the Federal Court of Australia Act). 

10                  Order 52 r 2AA of the Federal Court Rules provides:

Exercise of appellate jurisdiction (Act s 25)

An application mentioned in subsection 25(2) of the Act must be heard by a single Judge unless:

(a)        a judge directs that the application be heard and determined by a Full Court; or

(b)       the application is made in a proceeding that has already been assigned to a Full Court, and the Full Court considers it is appropriate for it to hear and determine the application.

11                  On an application for leave in matters such as this, the test in Décor Corp Pty Ltd  v Dart Industries Inc (1991) 33 FCR 397 (Décor).  It provides the basis for the grant of leave.  In Décor, the Court determined that the test is first whether in all the circumstances the decision is attended with sufficient doubt to warrant its being reconsidered by a Full Court and, secondly, whether substantial injustice would result if leave were refused, supposing the decision to be wrong.

12                  In this particular case in my judgment, the decision of the Federal Magistrates Court is not attended with sufficient doubt to warrant it being reconsidered by the Full Court of the Federal Court, or by a single judge exercising the appellate jurisdiction of this Court.

13                  Further, it has not been shown that the decision of Smith FM, if wrong, would result in substantial injustice if leave were refused.

14                  In relation to the three grounds of appeal in the draft Notice of Appeal which the applicant would wish to argue should leave be granted, it is appropriate to make the following comments. 

15                  The first ground alleges that the decision made by the Tribunal was illogical.  The Tribunal based its decision on its adverse credibility findings concerning the evidence of the appellant.  In particular, his oral evidence was considered by the Tribunal to be inadequate and contradictory.  There is nothing illogical in the way in which the Tribunal rejected the applicant’s claims. 

16                  It is one thing to say that a person disagrees with the decision; it is another to establish that the decision is illogical.  In any event, illogicality is not of itself  a basis for jurisdictional error.

17                  The second ground asserts that the Tribunal did not properly consider the applicant’s claims.  The second ground was considered by Smith FM in the Federal Magistrates Court, and his Honour expressed his conclusion that he had considered the procedures of the Tribunal and its reasons and was unable to identify any arguable jurisdictional error affecting the Tribunal’s decision.  No jurisdictional error is indicated in the material before either the Federal Magistrates Court or this Court in support of that claim.

18                  The third ground asserts “I was a Falun Gong practitioner and I was prosecuted by the Chinese government.”  This ground expresses a disagreement with the factual findings of the Tribunal.  As the judgment of McHugh J in Durairajasingham (2000) 168 ALR 407 makes plain, the findings of a Tribunal on credibility are factual findings of the primary decision-maker par excellence.  It is not the function of the court to substitute its findings or its view of the facts for that of the Tribunal.

19                  It is not the function of this court to correct administrative justice or administrative error.  What is required is the demonstration of jurisdictional error. The grounds of appeal raised by the applicant are without merit.  In those circumstances it would be futile to grant leave to appeal. 

20                  Any basis for the grant of leave is thus not made out.  The application for leave to appeal should be refused with costs.

21                  The orders of the court are:

(1)        The application for leave to appeal is dismissed; and

(2)       the applicant is to pay the costs of the first respondent, which I fix in the sum of  $1,250.00

Associate:

Dated:         29 August 2007