SZFNW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1729 (24 November 2005)

Last Updated: 12 December 2005

FEDERAL COURT OF AUSTRALIA

SZFNW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1729

SZFNW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1990 of 2005

ALLSOP J
24 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1990 of 2005

BETWEEN:	SZFNW APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	24 NOVEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal is dismissed.

2. The applicant pay the respondent's costs.

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 1990 of 2005

BETWEEN:	SZFNW APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	24 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for leave to appeal from orders made by Federal Magistrate Nicholls on 30 September 2005. Pursuant to a motion brought by the respondent Minister filed 24 May 2005 the Federal Magistrate dismissed the applicant's application for judicial review under rule 13.10(a) of the Federal Magistrates Court Rules on the basis that no reasonable cause of action was disclosed in the application.

2 Exhibit 1 before me is a copy of a letter of Phillips Fox of 24 May 2005 disclosing that the motion and affidavit in support were served on the appellant by correspondence under that letter. The applicant is present before me today and she indicated that she received that letter. Indeed, she must have received it because she attended the hearing on 30 September 2005 before the learned Federal Magistrate.

3 Shortly prior to the hearing of the motion submissions were filed by the respondent. Exhibit 2 before me is a copy letter of Phillips Fox to the applicant dated 20 September under which it is said that the respondent's submissions were served. The applicant expressed some doubt today as to whether she received that letter. I note that it was sent to the same Haymarket address as the first letter. That address was the address for service provided by the applicant in the Federal Magistrates Court on her application and amended application.

4 A full interlocutory hearing took place before the Federal Magistrate on 30 September. The Federal Magistrate acceded to the orders sought in the notice of motion and dismissed the application as one disclosing no reasonable cause of action. It is against those orders that leave to appeal is sought.

5 Before proceeding to consider the approach of the Federal Magistrate in making those orders I should note one further thing about the letter of 20 September 2005 which is exhibit 2. The letter contains notification that the final hearing has been listed for 10 August 2006. That may have been productive of some confusion given that what the Minister was attempting to do in the notice of motion was to bring the proceedings to an end on a summary basis. The Minister succeeded in this application, that is the application contained in the notice of motion. Thus, success in the summary application would mean that no final hearing would ever take place.

6 There is nothing in the evidence before me, nothing that has been said before me and nothing in the Federal Magistrate's reasons which would indicate that the applicant was not aware of the nature of the orders being sought before the Federal Magistrate.

7 I now turn to the reasons of the Federal Magistrate. The Federal Magistrate recognised during the course of his reasons the necessity for great caution in summarily dismissing applications. The learned Federal Magistrate examined both the application and the amended application which had been filed in the Federal Magistrates Court and correctly identified that there was no ground whatsoever identified in either document which would amount in terms to any assertion of jurisdictional error in the decision of the Refugee Review Tribuna (the "Tribunal").

8 The first document, the original application, had two paragraphs under the sentence fragment "The grounds of the application are:"

1. A decision that I meet the refugee criteria.
2. I face a risk of being jailed if I go back to my original country – P R China. There was no place for me to stay in China. For many years I was persecuted and I almost lost my life. I was ever reported to the PSB because I visited a church. I was arrested by PSB for many times. I was charged with a crime against the state because I helped two students during 1989 when the tienanmen Square incident was current.

neither of which identifies any error in the Tribunal’s decision. The amended application was a longer document of two and a half pages which deals discursively with the applicant's factual position in China and why she says she is entitled to a protection visa.

9 Those matters, if made out and if believed, may entitle the applicant to a protection visa. However, restated in the form of grounds for a judicial review application they do not assist in identifying any jurisdictional error on behalf of the Tribunal. Thus, the learned Federal Magistrate was plainly correct in coming to the view that the documents themselves as initiating processes disclosed no cause of action.

10 The learned Federal Magistrate then, entirely properly, looked at the underlying material being the Tribunal’s reasons. The Federal Magistrate was, after a careful reading of those reasons, unable to discern for himself any identifiable jurisdictional error. I have done the same, and nor can I.

11 It should be noted that the Federal Magistrate considered the question of s 424A of the Migration Act and though he did not mention the case by name, it is plain that he understood the significance of the High Court decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 when read together with the Full Court decision in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919; (2001) 110 FCR 27. The Federal Magistrate was of the view that no s 424A issue arose because the Tribunal appears to have relied entirely upon the oral evidence of the applicant before it. That view appears to me to be correct.

12 The Federal Magistrate also took detailed submissions from the applicant which are recorded in his reasons. Looking at those matters in [4] of the Federal Magistrate's reasons, I can only agree with what is contained in [5], that those matters, together with an examination of the Tribunal's decision, disclose no reasonable cause of action.

13 The applicant asked for further time before the Federal Magistrate to obtain a lawyer. The Federal Magistrate was of the view that no further time should be given. Given the matters referred to in the Tribunal's reasons, that was a view open to the Federal Magistrate.

14 The same request was made of me today, notwithstanding the fact that almost two months have passed since the decision in September and no further steps seem to have been taken to obtain any legal advice.

15 There has been no basis put forward at any stage by the applicant from which one could conclude that there is any arguable basis to say that the Tribunal committed any jurisdictional error. By and large, and subject to limitations of irrationality and unreasonableness the boundaries of which are not clear, the fact finding process is one for the Tribunal. It is not for the Federal Magistrates Court or this Court to hear the facts and decide whether a protection visa should be granted.

16 The notion of jurisdictional error is one which requires that the Tribunal act lawfully and fundamentally reasonably. Views about whether people should be believed or not are essentially matters for the Tribunal to reach. I see no error in the approach of the learned Federal Magistrate. Accordingly, I do not propose not to permit leave to appeal in a case which appears, on the material before me, to be doomed to fail. Therefore, the orders that I make are:

1. The application for leave to appeal is dismissed.

2. The applicant is to pay the respondent's costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated: 12 December 2005

The Applicant appeared in person assisted by an interpreter.
Counsel for the Respondent:	Mr J Bird
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	24 November 2005
Date of Judgment:	24 November 2005