SZHRY v Minister for Immigration and Citizenship [2007] FCA 206 (22 February 2007)

Last Updated: 27 February 2007

FEDERAL COURT OF AUSTRALIA

SZHRY v Minister for Immigration and Citizenship [2007] FCA 206

Migration Act 1958 (Cth)

SZHRY v Minister for Immigration & Anor [2006] FMCA 1596 upheld




























SZHRY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2207 OF 2006

GYLES J
22 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2207 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHRY Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GYLES J
DATE OF ORDER:	22 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The name of the first respondent be amended to Minister for Immigration and Citizenship.

2. The appeal be dismissed.

3. The appellant pay the costs of the first respondent, assessed and fixed at $2 000.

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 2207 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHRY Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GYLES J
DATE:	22 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from the judgment and orders of Baumann FM dated 24 October 2006 in SZHRY v Minister for Immigration & Anor [2006] FMCA 1596, in which an application seeking review of a decision of the Refugee Review Tribunal (the Tribunal) was rejected. The appellant is a citizen of the People’s Republic of China who claimed to fear persecution from the Chinese authorities because of his association with an Archbishop and his activities in relation to an underground Catholic Church in China.
2 The Tribunal invited his attendance at a hearing, which was accepted. Following the hearing a letter was sent to the appellant pursuant to s 424A of the Migration Act 1958 (Cth), outlining matters of concern to the Tribunal and seeking a response. There was a response. The Tribunal concluded that the appellant was not, and never had been, a Roman Catholic and had never known the Archbishop in question and thus rejected his claim that he faced a real chance of persecution if he returned to the People’s Republic of China.
3 The Tribunal had given a number of identified reasons for coming to that conclusion. Of course, as in many of these cases, there can be two views about whether or not the decision of the Tribunal was right or wrong. The appellant protested strongly that it was wrong. However, the Federal Magistrates Court does not sit on appeal from the Tribunal and can only step in if there is jurisdictional error by the Tribunal in the way it deals with a matter.
4 In turn, as I have endeavoured to explain to the appellant, this Court only sits to correct appealable error on the part of the Federal Magistrates Court and does not sit, in any way, on appeal from the decision of the Tribunal. The notice of appeal does not identify any error in the reasons of the Federal Magistrate. Indeed, the application to the Federal Magistrates Court did not descend to any detail about the general grounds which were taken and did not isolate what might be regarded as jurisdictional error.
5 The learned Federal Magistrate considered the matters put forward in the application and orally and rejected the application to set aside the Tribunal’s decision because the appellant’s arguments were aimed at the merits of the Tribunal’s decision rather than isolating any jurisdictional error. For that reason, the appellant would have great difficulty in isolating any error by the Federal Magistrate. As I have said, none is pointed to in the notice of appeal or any material provided by the appellant and he has been unable today to take the matter any further orally. That is not surprising. He is unrepresented and is in an unfamiliar situation.
6 Having read the Federal Magistrate’s reasons I can detect no error in the way he approached the matter. Indeed, having in mind the factual nature of the decision made by the Tribunal, it is difficult to see how there could be any realistic attack upon it from a jurisdictional viewpoint. Procedurally, the Tribunal appears to have conducted itself in accordance with the law. Under the circumstances, there being no proper basis for setting aside the decision of the Federal Magistrates Court, the appeal must be dismissed. I order that:
(1) The name of the first respondent is amended to Minister for Immigration and Citizenship.
(2) The appeal is dismissed.
(3) The appellant is to pay the costs of the first respondent, assessed and fixed at $2,000.

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

Associate:

Dated: 26 February 2007

	The Appellant appeared in person
Solicitor for the First Respondent:	Mr R White of Sparke Helmore

Date of Hearing:	22 February 2007
Date of Judgment:	22 February 2007