SZJTA v Minister for Immigration and Citizenship [2007] FCA 1289 (13 August 2007)

Last Updated: 23 August 2007

FEDERAL COURT OF AUSTRALIA

SZJTA v Minister for Immigration and Citizenship [2007] FCA 1289

SZJTA v Minister for Immigration and Citizenship [2007] FMCA 159 upheld































SZJTA v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 350 OF 2007

GYLES J
13 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 350 OF 2007

BETWEEN:	SZJTA Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	GYLES J
DATE OF ORDER:	13 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.
2. The applicant pay the respondent’s costs of the application.

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 350 OF 2007

BETWEEN:	SZJTA Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	GYLES J
DATE:	13 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for leave to appeal from a decision of the Federal Magistrates Court which dismissed an application pursuant to r 44.12(1)(a) of the Federal Magistrate Court Rules 2001 (SZJTA v Minister for Immigration and Citizenship [2007] FMCA 159).

2 The sequence of events is that the applicant for leave filed an application to the Federal Magistrates Court under the Migration Act 1958 (Cth) (the Act) to show cause why a remedy should not be granted in exercise of that Court’s jurisdiction under s 476 of the Act in respect of a decision of the Refugee Review Tribunal (the Tribunal) which affirmed a decision of a delegate of the respondent (the Minister) to refuse a protection visa. There were two grounds stated for the application:

"1. The Tribunal had bias against me and could not consider my application according to Law. The decision was made base on assumption of the Tribunal. The Tribunal failed to consider my application according to S91R of the Migration Act 1958.

2. The Tribunal failed to consider my application according to S424A of the Migration Act 1958. The Tribunal had not notified me the reason or part of the reason for affirming the decision before making a decision on my application. I was not given an opportunity to comment on the reason."

3 The affidavit in support of the application repeated in shorter form those two grounds and annexed a copy of the decision record of the Tribunal in question. The solicitor for the Minister then filed a response in the following terms:

"In the application filed on 23 November 2006, no evidence is provided to support the allegation of bias, and no particulars are provided to support the alleged breach of section 424A. Therefore, the First Respondent opposes the application on the basis that no reasonable cause of action is shown."

4 An amended application was filed on 29 December 2006. The first ground, slightly differently expressed, again referred to s 424A and purported to set out particulars of that ground. The second ground of bias and failure to consider the application was put in similar form to the previous ground and not elaborated upon further.

5 Rule 44.02 of the Federal Magistrates Court Rules governs matters commenced in that Court and r 44.05 deals with applications for an order to show cause relating to the exercise of jurisdiction pursuant to s 476 of the Act. Rule 44.05(2) provides that an application must be supported by an affidavit including, inter alia, any document or other evidence upon which the applicant seeks to rely. Rule 44.06 provides for the response to which I have referred above.

6 Rule 44.11 provides that, amongst other things:

"at the first court date for an application for an order to show cause, the Court or a Registrar may give orders or directions for ...
(b) a future listing for a hearing under rule 44.12"

7 In view of the response, that was done in the present case. By virtue of r 44.12, the Court may, if it is not satisfied that the application has raised an arguable case for the relief claimed, dismiss the application. For the avoidance of doubt, such a dismissal is interlocutory (r 44.12(2)). Rule 44.13(1) provides that:

"At a hearing of an application for an order to show cause, the applicant is confined to the relief sought and the grounds mentioned in the application."

8 This procedure is similar to the order to show cause or order nisi procedure familiar in many administrative law jurisdictions including the High Court. The show cause hearing is, in effect, the equivalent of an order nisi application under that kind of procedure.

9 In the present case, the learned Federal Magistrate considered the grounds in the amended application. The ground of bias and failure to properly consider the claims based on s 91R was not, as I have indicated, supported by any particulars in the documents filed on behalf of the applicant. A claim of bias could not succeed in the absence of evidence and, as the learned Federal Magistrate pointed out, there was no such evidence.

10 The failure to consider the matter having regard to s 91R was rejected. The backdrop is that the applicant is from China and made the claim of fear of persecution based upon his practise of Falun Gong. The Tribunal simply did not believe that he was such a practitioner and the Magistrate held, and I agree, that the critical factor was the evidence given by the applicant at the Tribunal hearing. Driver FM saw no basis for finding jurisdictional error based on a failure to properly consider the matter. He was satisfied that the Tribunal’s decision was succinct, cogent and clear. There is no reason to disagree with that.

11 The remaining point concerned whether there was an arguable breach of s 424A. The manner in which the matter was pleaded in the amended application did not identify any particular information. It purported to summarise the effect of the decision in the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162 but the particulars appear to be directed to showing that the Tribunal had regard to the material in the first respondent’s file, that is material produced by the applicant as part of his original visa application. Driver FM, having considered the issue, indicated that the Tribunal decision turned upon the applicant’s own evidence given to the Tribunal for the purposes of the review application and that whatever may be said about the obligation to comply with s 424A in relation to material with the original visa application, it could have no effect in the present circumstances.

12 The Federal Magistrates Court’s decision is interlocutory and the applicant, in order to obtain leave to appeal, needs to show at least that there is an arguable case of error on the part of the Federal Magistrate. It is not necessary in this case to consider the proper approach to that question, bearing in mind the authorities as to the review of interlocutory decisions. This kind of decision would no doubt fall into the category of interlocutory decision having an effect upon substantive rights and would not be seen as simply a matter of practice or procedure.

13 Be that as it may, it seems to me that there is simply no ground for thinking that the decision of Driver FM is attended by any doubt and, that being the case, the application for leave is refused with costs.

14 My attention has been properly drawn to the fact that, although the reasons below do refer to the Tribunal, it may not be technically a party to this application for leave. However, as I have dismissed the application, I do not think there is any merit in amending the parties after the event.

15 The orders of the Court are:

(1) The application for leave is dismissed;
(2) The applicant is to pay the respondent’s costs of the application.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 21 August 2007

	The Applicant appeared in person
Solicitor for the Respondent:	Mr L Leerdam of DLA Phillips Fox
Date of Hearing:	13 August 2007
Date of Judgment:	13 August 2007