SZMMR v Minister for Immigration & Citizenship [2009] FCA 969

FEDERAL COURT OF AUSTRALIA

SZMMR v Minister for Immigration & Citizenship [2009] FCA 969

SZMMR v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 322 of 2009

SPENDER J

7 AUGUST 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 322 of 2009

GENERAL DIVISION

BETWEEN: SZMMR

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SPENDER J

DATE OF ORDER: 7 AUGUST 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time be dismissed. 2. The applicant to pay the costs of the first respondent of and incidental to the application, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 322 of 2009

GENERAL DIVISION

BETWEEN: SZMMR

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: SPENDER J

DATE: 7 AUGUST 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for an extension of time in which to file and serve a Notice of Appeal from a judgment of Barnes FM, on 18 March 2009, dismissing with costs the applicant's application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). 2 The Tribunal, by a decision dated 29 May 2008 and handed down on 10 June 2008, affirmed a decision of a delegate of the Department of Immigration and Citizenship not to grant to the applicant a protection visa. 3 A Notice of Appeal is to be filed within 21 days. The current application was filed on 17 April 2009, some nine days after that time expired. An extension of time is required. 4 I would be minded to grant an extension of time if there were reasonable prospects of success of an appeal, but, for the reasons which follow, I am not satisfied that there is any real prospect of success. Therefore the application for an extension of time will be refused. 5 The grounds on which any proposed appeal will be brought are set out in a draft Notice of Appeal filed by the applicant. They are: 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. 6 The difficulty is that the applicant misunderstands what has to be demonstrated before an appeal can be allowed. In particular, the applicant, when I asked why the Federal Magistrate was wrong, said to me, "I didn't say she was wrong. The interpreter's voice was too low." 7 In his oral submissions to this Court today, the applicant complained about aspects of the Tribunal's hearing, including that he was asked too many questions and "the events happened a long time ago so how could I remember everything?" His essential complaint is, "How could they come to the conclusion that they did?" 8 The Tribunal based its decision on an adverse finding of credibility of the applicant. The applicant confirmed that his real complaint was, "I tell the truth. I am a truthful person. Everything I told the RRT did happen." This criticism is a criticism of the finding made by the Tribunal. The applicant disagrees with that conclusion and says that he did tell the truth. The difficulty is that such a finding is a finding of fact and it is not within the competence of the Federal Magistrates Court or the Federal Court of Australia to engage in merits review of the case conducted in the Tribunal. 9 This misunderstanding of what a Court can do concerning, in particular, findings of credibility made by the Tribunal infects all of the submissions by the applicant. The submissions which he made to this Court seek to address the merits of the findings by the Tribunal. It is not competent for this Court to allow an appeal on that basis. 10 For these reasons, in my judgment the applicant would have no prospects of success on the grounds he seeks to rely upon. There would therefore be no utility in the granting of an extension of time within which to appeal. 11 The orders of the Court are that: 1. The application for an extension of time in which to appeal is dismissed. 2. The applicant is to pay the costs of the first respondent of and incidental to the application, to be taxed if not agreed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.