Durairajasingham, Kumarakulasingham Duraiappah v Minister for Immigration & Multicultural Affairs & Ors [1998] FCA 853

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1027 of 1997

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: KUMARAKULASINGHAM DURAIAPPAH DURAIRAJASINGHAM

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

First Respondent

ROSLYN SMIDT SITTING AS THE REFUGEE REVIEW TRIBUNAL

Second Respondent

SHUNMUGAM NGANASAMANTHAM IN HIS CAPACITY AS PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

Third Respondent

JUDGES: BURCHETT, whitlam and branson jj

DATE: 13 july 1998

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J (delivering the reasons of the Court) This is an appeal from a decision of Davies J dismissing an application to review a decision of the Refugee Review Tribunal rejecting the appellant's claim to refugee status. The matter was instituted by a proceeding in the High Court of Australia, parts of which were remitted to this court for hearing. We set aside, at the outset, an order purportedly dismissing the whole application, substituting the order actually made by Davies J which dismissed only those parts of the application that had been remitted. An appeal from an order in this form requires leave: see Thai v Deputy Commissioner of Taxation (1994) 123 ALR 570 at 577-578. We treated the appeal, launched by a litigant in person with a very limited command of English, as involving an application for leave. In the circumstances, in which so much of the application to the High Court as could be remitted to this court was so remitted, and in which the effect of the order made is final so far as that portion of the proceeding is concerned, we consider the appellant should have leave to appeal. But the grounds of appeal sought only to renew the endeavour made before the trial judge, as he expressed it, to re-agitate the merits of the case and to put reasons why the Tribunal should have come to a different conclusion. This is not a basis on which a review of a decision of the Refugee Review Tribunal can be brought. Although the appellant, without the benefit of legal representation upon the appeal, was unable to debate again the issues which were raised before Davies J, except to a very limited extent, we have considered the trial judge's reasoning for ourselves. For the reasons which were explained by his Honour, the application made to him could not succeed. In particular, the ground of actual bias was not made out. Since the judgment of Davies J was delivered, a further appellate decision dealing with this topic has been handed down: Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505. In a passage at 555, some emphasis was laid on the gravity of a finding of actual bias. Like Davies J, we can see in the present case no basis for such a finding. As we have said, and as Davies J pointed out, the real gravamen of the appellant's case relates to the factual findings in relation to which, except in very confined circumstances, the court has no jurisdiction. Accordingly, the appeal must be dismissed. What I have just read out constitutes the reasons of the court. The appeal is dismissed, and I now add that by majority the court orders that the appellant pay the first respondent's costs. I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Court