SZAQN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 629

FEDERAL COURT OF AUSTRALIA

SZAQN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 629 SZAQN v Minister for Immigration and Multicultural and Indigenous Affairs NSD 206 OF 2006 YOUNG J 9 MAY 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 206 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAQN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: YOUNG J

DATE OF ORDER: 9 MAY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. 3. The Refugee Review Tribunal be joined as the second respondent to the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 206 OF 2006

BETWEEN: SZAQN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: YOUNG J

DATE: 9 MAY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the decision of Scarlett FM on 19 January 2006. The appeal is heard by me as a single judge, pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). 2 On an appeal from the Federal Magistrates Court, the issue I must consider is whether the appellant has demonstrated that the judgment of the Federal Magistrate is attended by some legal, factual or discretionary error: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4]. The authorities establish very clearly that fact finding is the responsibility of the lower court or tribunal: see eg Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67]. 3 In this matter, the sole issue that arises on appeal is whether any error was made by Scarlett FM in rejecting the appellant's claim that he was denied procedural fairness by the Tribunal. In my opinion, no error was made by the Federal Magistrate. To explain why I have reached this conclusion, it is necessary to recount the background and history of the matter to some extent.