SZIYT v Minister for Immigration and Citizenship [2007] FCA 154 (19 February 2007)

Last Updated: 5 March 2007

FEDERAL COURT OF AUSTRALIA

SZIYT v Minister for Immigration and Citizenship [2007] FCA 154

Federal Court of Australia Act 1976 (Cth) s 24
Migration Act 1958 (Cth) s 424A

Federal Magistrates Court Rules 2001 (Cth) r 44.12

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397




























SZIYT v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 1979 OF 2006

STONE J
19 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1979 OF 2006

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

JUDGE:	STONE J
DATE OF ORDER:	19 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal be joined as second respondent to the application.
2. The "Minister for Immigration and Citizenship" be substituted for the "Minister for Immigration and Multicultural Affairs" as the first respondent to the application.
3. The application is dismissed with 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	NSD1979 OF 2006

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

JUDGE:	STONE J
DATE:	19 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application made under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) for leave to appeal from a decision of the Federal Magistrates Court; [2006] FMCA 1526.

2 The applicant arrived in Australia from the People’s Republic of China in October 2005 and lodged an application for a Protection (Class XA) visa in November of that year. In his application, the applicant stated that he had been detained by Chinese authorities as a result of attending unregistered religious services and claimed that if he returned to China he would be persecuted because of his religious beliefs.

3 His application was rejected in turn by a delegate of the Minister and the Refugee Review Tribunal. The Tribunal was ‘not satisfied that the applicant was sufficiently knowledgeable about Christianity to be a Christian’ and therefore ‘not satisfied that the applicant would be persecuted because of his religious beliefs if he were returned to China.’

4 On 23 June 2006, the applicant filed an application seeking relief in the Federal Magistrates Court. On 18 July, in a hearing before Smith FM, the applicant was warned that his application could be dismissed at the next hearing unless the Court was satisfied that it raised an arguable case. On 26 September 2006, Smith FM found that the applicant’s allegations against the Tribunal decision were ‘not shown to have any arguable substance’. His Honour noted that he had ‘considered the Tribunal’s reasoning and consider that no arguable jurisdictional error appears.’ Accordingly, His Honour dismissed the application under r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).

5 Rule 44.12(2) of the above Rules provides that a dismissal of an application under paragraph (1)(a) is interlocutory. Accordingly, the applicant requires the leave of this Court to appeal from that dismissal; Federal Court of Australia Act 1976 (Cth) s 24. He applied for that leave on 11 October 2006. An important consideration for the Court in considering an application for leave is whether the appeal, should leave be granted, would have some prospect of success: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

6 The applicant’s draft notice of appeal sets out three grounds. The first alleges that the Tribunal failed to fulfil its obligations under s 424A of the Migration Act 1958 (Cth). The second alleges bias on the part of the Tribunal. The third complains that the Federal Magistrate denied the applicant the opportunity of a hearing despite his providing details of the Tribunal’s errors. I am satisfied that these grounds hold out no prospect of success for the applicant, for the reasons given by the Federal Magistrate. Accordingly, I dismiss the application for leave with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:
Dated: 19 February 2007

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 February 2007
Date of Judgment:	19 February 2007