Case: SZMUV v Minister for Immigration and Citizenship [2008] FMCA 1644
Outcome: cited
Application for review of the Tribunal's decision was filed in the Federal Magistrates Court on 2 October 2008 and an Amended Application was subsequently filed on 28 November 2008. That Court dismissed the Application pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) on 8 December 2008: SZMUV v Minister for Immigration and Citizenship [2008] FMCA 1644. Rule 44.12 of the 2001 Rules provides as follows: Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed &#8212; dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed &#8212; adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory. As r 44.12(2) expressly provides, the dismissal of an application under r 44.12(1)(a) is an interlocutory decision. That difficulty is only compounded by the generality of the submissions previously advanced by the Respondent Minister and thereafter incorporated in the Magistrate's reasons. A principal ground being advanced before the Federal Magistrate by the present Applicant was a denial of procedural fairness " by reaching adverse conclusions that the Tribunal did not find the applicant to be a credible or reliable witness, being conclusions that were not obviously open on the known material, without giving the applicant the opportunity to be heard in respect of those matters ". The written submission advanced by the Minister and incorporated into the reasons simply asserted: The particulars of this ground are that the Tribunal's adverse credit findings against the applicant were not "obviously open to it" and that (therefore) it did not give the applicant an opportunity to be heard on those matters. There is no substance in this complaint. The applicant was on notice from the delegate's decision that his credit was in issue. Furthermore, contrary to the applicant's assertion, the adverse credit findings of the Tribunal were obvious inferences from the evidence before it. The Magistrate then concluded that " (t)he adverse credibility findings made by the Tribunal were open to it on the material before it ": [2008] FMCA 1644 at [5] . Both the submission and the reason provided are but generalities. In contrast stand the reasons of the Tribunal. The Tribunal expressed its finding as to credibility and then went on to provide instances to support its finding. For example, the Tribunal concluded as follows: [84] I did not find the applicant to be a credible or reliable witness. With respect to the material aspects of his claim I found his evidence to be vague and at times confusing. [85] I do not accept that the applicant is or was a member or office holder in the Chatra League or the Awami League. The applicant's evidence was vague and full of generalities. I would have expected that if he had been a General Secretary or any office holder he would have been able to give me a more detailed account of how he joined the party, the nature of his activities with which he was involved and of his role as office holder. I found his evidence to be confused and lacking in credibility. He claimed that a relative was a Member of Parliament for the Awami League however could not tell me the name of his seat or any other details relating to his candidature. I would have expected that he would have had a better understanding of the organisation of the Awami League and how it operates in the Comilla area and greater knowledge of the structures and organisation of the party. On balance, however, it is considered that the reasons of the Magistrate: (i) disclose the reasoning process in fact adopted; and (ii) display no appellable error. Notwithstanding the extent to which the Magistrate has placed reliance upon the material incorporated within his reasons for judgment, the remaining brevity of the language of the Magistrate does indicate that he did give independent consideration to each of the grounds sought to be advanced. The Magistrate correctly concluded that " the applicant failed before the Tribunal because he was not believed ": [2008] FMCA 1644 at [5] . He then went on to address, albeit briefly, the arguments founded upon an alleged breach of s 424A of the Migration Act 1958 (Cth) and an allegation of actual bias. The decision in SZDGC v Minister for Immigration and Citizenship [2008] FCA 1638 , 105 ALD 25, it was concluded, was to be distinguished. The very process of distinguishing that decision exposes not only an independent consideration of the facts of SZDGC but an independent consideration of the facts of the case then before him and an analysis of the decision of the Refugee Review Tribunal. Obvious care must be taken to ensure that an appeal does not become a vehicle for simply criticising the manner in which the reasons of a judge at first instance have been expressed. Recognition must also be given to the fact that the Federal Magistrates Court is entrusted with a primary role in resolving migration cases. In that Court in 2007 over 1500 migration applications were filed and more than 2000 migration matters were finalised. These figures were higher still in each of the three preceding years. Any review of the reasons as provided by a Federal Magistrate must necessarily take into account the sheer number of the cases that that Court has to resolve. But there is a point below which the economy of language with which reasons may be expressed cannot trespass. In the present proceeding it is unquestionably the case that the reasons for decision of the Federal Magistrate may have been better expressed and more fully expressed. Had that course been taken, the Applicant may well have continued to express regret &#8212; but he would at least feel confident that his case had been thoroughly considered.