SZJEL v Minister for Immigration and Citizenship [2007] FCA 749 (18 May 2007)

Last Updated: 21 May 2007

FEDERAL COURT OF AUSTRALIA

SZJEL v Minister for Immigration and Citizenship [2007] FCA 749

SZJEL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2263 OF 2006

CONTI J
18 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2263 OF 2006

BETWEEN:	SZJEL Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	CONTI J
DATE OF ORDER:	18 MAY 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 application for leave to appeal be dismissed.
3. The applicant to pay the first respondent’s costs of the appeal.

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 2263 OF 2006

BETWEEN:	SZJEL Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	CONTI J
DATE:	18 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for leave to appeal from the judgment and orders of Federal Magistrate Driver delivered on 27 October 2006, whereby his Honour dismissed what his Honour described as ‘a show cause application relating to a decision of the Refugee Review Tribunal’ (‘the Tribunal’), which affirmed the decision of a delegate of the Minister made on 28 February 2006 not to grant the applicant a protection visa. That decision of the Tribunal was made on 16 June 2006.

2 When that show cause application first came before Driver FM on 8 September 2006, his Honour observed that it was not apparent to him whether the same disclosed an arguable case. Accordingly on that occasion, Driver FM ordered that ‘a show cause hearing’ take place pursuant to rule 44.12 of the Federal Magistrates Court Rules 2001 (Cth), and additionally made orders for the filing of any additional material. The opportunity was extended by his Honour to file and serve any additional affidavit evidence, including a transcript of the Tribunal hearing, by 13 October 2006.

3 Earlier on 9 August 2006, the applicant had filed in the Federal Magistrates Court an affidavit which, to adopt his Honour’s description, ‘simply annexed a copy of the decision of the Tribunal...’. The Minister filed subsequently on 20 September 2006 a court book, which also contained inter alia a copy of the Tribunal’s decision. On 12 October 2006, the applicant filed an amended application for judicial review in the Federal Magistrates Court.

4 That amended show cause application came on for hearing before Driver FM on 27 October 2006, and as I have foreshadowed at the outset of these reasons, was dismissed. The grounds for review the subject of that show cause application were threefold, as summarised by his Honour as follows:

(i) the Tribunal failed to consider the applicant’s claim and misunderstood the same;

(ii) the Tribunal breached s 424A of the Migration Act 1958 (Cth) (‘the Act’), upon the footing that ‘an obligation of disclosure arose in relation to a letter from the Rev Dominic Ku provided in support of the review application’.
(iii) the Tribunal breached s 425 of the Act.

5 As to that first ground for review, Driver FM observed that it was apparent from the particulars so given that the applicant was ‘... dissatisfied with the consideration given to his claims by the Tribunal’. However, his Honour concluded that ‘... it is obvious from the record of the Tribunal decision and reasons that his claims were considered...[and] were understood’ and that there was ‘no factual error having any jurisdictional significance’.

6 As to that second ground for review, Driver FM recorded that the alleged breach of s 424A was raised upon the footing that an obligation of disclosure arose in relation to a letter from Reverend Dominic Ku provided in support of the review application, but that ‘... as is acknowledged in the first particular to ground 2, that letter was submitted by the applicant to the Tribunal in support of his review application’. Accordingly his Honour held that ‘[t]he information in it therefore fell within the exception in s 424A(3)(b) of the Act’, and that accordingly ‘there [was] no arguable case of any breach of s 424A’.

7 As to the third ground for review, his Honour recorded that the same involved an allegation of breach of s 425 of the Act, but that ‘[t]he particulars, however, make tolerably clear that this is simply a contest over the merits of the Tribunal decision’, and that there was ‘... no arguable case of a breach of s 425’, since ‘[t]he Tribunal met its statutory obligation to invite the applicant to a hearing’, which the applicant did attend and at which he did give evidence, with the assistance of an interpreter. Accordingly his Honour found that there had been no breach of s 425 of the Act.

8 In oral submissions advanced to the Federal Magistrates Court, his Honour recorded that the applicant ‘raised other matters’, as follows:

(i) that he was ‘... never advised of the Tribunal decision and reasons’; that matter was described by his Honour as ‘patently untrue’, since first, the Court Book at page 80 disclosed that a copy of the decision was sent to the applicant’s migration agent on 4 July 2006, and secondly, a copy of the decision was provided by the applicant to that Court below along with his original show cause application;
(ii) that ‘there were interpretation problems at the hearing’; however his Honour asserted that ‘... as I pointed out to the applicant, he has not taken up the opportunity to provide any evidence that might have supported that assertion’;
(iii) ‘that the presiding member was angry with him for not bringing his passport to the Tribunal hearing and that the presiding member displayed a dislike of him’.

9 In response to those further matters, Driver FM found at [10] as follows:

‘I have already stated that there is no evidence before me to support an allegation of bias. It is true that the applicant failed to bring his original passport to the Tribunal hearing. However, the applicant provided his passport to the Tribunal after the hearing... [t]he only conclusion that I can see in the Tribunal’s findings and reasons based upon the information in the passport was a favourable one. The Tribunal accepted from the information in the passport that the applicant is a Chinese national.’

10 Accordingly Driver FM found that there was no arguable case of jurisdictional error involved in the Tribunal decision and therefore dismissed the application for review of the Tribunal’s decision pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), and ordered the applicant to pay the Minister’s costs of the application, which were assessed at $2,500.

The application for leave to appeal to the Federal Court of Australia

11 On 16 November 2006, the applicant filed an application for leave to appeal from the judgement of the Federal Magistrates Court given on 27 October 2006, which I have summarised above. The application acknowledged that leave was required and asserted that the grounds of the application for leave ‘... appear in the annexed affidavit’. Grounds 1, 2 and 3 comprising the totality of that affidavit read as follows:

‘1. The learned Federal Magistrate erred in law.

2. The learned Federal Magistrate was wrong in finding that the Refugee Review Tribunal ("the Tribunal") acted properly in its findings.

3. Particulars

The learned Federal Court of Australia failed to consider that:-

- The Refugee Review Tribunal ("the Tribunal") failed to consider my claims, properly and fairly.

- The Tribunal failed to comply with its obligation under s 424A(1) of the Act.

- The Tribunal failed to comply with its obligation under s 425 of the Act.’

12 The Minister opposed the grant of leave to appeal, and referred to authoritative principles applicable to the granting of leave to appeal in circumstances such as the present. Paras 10, 11 and 13 of what were the Minister’s contended grounds for refusal of leave to appeal were as follows:

‘10. The First Respondent submits that the decision of his Honour Federal Magistrate Driver is not attended with sufficient doubt to warrant it being reconsidered by the Full Court. His Honour found:

(a) that it was obvious from the record of the RRT’s decision and reasons that the Applicant’s claims were considered and, on the face of the decision record, were understood by the RRT. His Honour was unable to identify any factual error having any jurisdictional significance in the decision of the RRT;

(b) his Honour was unable to find any material to support the Applicant’s allegation in his amended application that the RRT was biased;

(c) his Honour noted that the Applicant asserted there had been a breach of section 424A of the Act and, in particular, in relation to an obligation of disclosure of a letter from Reverend Dominic Ku provided in support of the review application. However, as noted by his Honour, that letter was submitted by the Applicant to the RRT in support of his review application and therefore fell within the exception in section 424A(3)(b) of the Act. Accordingly, it is submitted that his Honour was correct in finding that there was no arguable case of a breach of section 424A of the Act;

(d) his Honour also noted that the amended application of the Applicant asserted a breach of section 425 of the Act but that the particulars provided were simply a contest over the merits of the RRT’s decision. His Honour found that the RRT met its statutory obligation to invite the Applicant to a hearing and that the Applicant attended and gave evidence at that hearing. His Honour concluded that there was no arguable case of a breach of section 425A of the Act.

11. The First Respondent submits that no error is disclosed in the RRT’s reasons for decision. Essentially, the RRT rejected the Applicant’s claims to be a Christian, or to have participated in the underground church in China, in the absence of any evidence before the RRT in support of those claims and having regard to the failure of the Applicant to reveal any real knowledge of the Christian faith, the bible or the teachings of Christ when questioned in relation to these matters by the RRT at the hearing. The RRT ultimately found that the Applicant was not a credible witness and thereby rejected all of his claims. The First Respondent submits that such findings of the RRT were open on the evidence before it and no error is disclosed in the RRT’s reasoning or findings in this regard.

12. The Applicant has not provided particulars of the RRT’s alleged errors or identified any error made by Federal Magistrate Driver. It is submitted that leave to appeal should not be granted. The Applicant has not demonstrated that:

(a) the decision of the Federal Magistrate "is attended with sufficient doubt to warrant its being reconsidered by the Full Court"; or

(b) "substantial injustice would result if leave were refused"; or

(c) The decision was wrong.’

13 At the hearing of the present proceedings on the 6 March 2007, the applicant addressed the Court on the merits of the proposed appeal, seemingly however upon the footing that he had already a right of appeal. The matters which he advanced were directed in any event to the merits of the Tribunal’s decision. He spoke of his membership of the ‘underground church’ in China, and of his patronage of it, and his activities otherwise undertaken in relation thereto, and the consequence therefor in terms of the likelihood of his persecution by Chinese authorities if returned to China. He also spoke distressingly of the fate that had befallen him, his brother and sisters in consequence of his father’s relationship with ‘another woman’ after their mother’s death, though it may be observed that his age is 36 years, his brother is 40 years of age and his eldest sister is 42 years of age. The applicant disclosed also that he is married with children, and that his wife and children presently remain in China.

14 In subsequent written submissions filed by the first respondent in the Court’s Registry on 8 March 2007, my attention was additionally drawn to subss (1) and (2) of s 477 of the Act and to Rule 44.12(2) of the Federal Magistrates Court Rules; in that latter regard, it is stipulated that ‘To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory’. It was acknowledged thereby that the decision of Driver FM below was interlocutory in nature. In my opinion the submission was correct, and I so indicated in the course of the hearing of the present application.

15 I am of the view, for the reasons articulated by counsel for the Minister, that leave to appeal should be refused upon the footing that the reasons for decision of Driver FM have not been shown to have been vitiated and that his Honour’s decision ‘is not attended with sufficient doubt to warrant it being reconsidered by the Full Court’. I feel constrained to record, however, that in the limited and therefore untested context in which the applicant addressed the Court, there was demonstrated a genuine sadness inherent in the applicant’s circumstances. Nevertheless the application must inevitably be dismissed.

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

Associate:

Dated: 18 May 2007

Applicant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	6 March 2007
Date of Judgment:	18 May 2007
Date of Final Submissions:	8 March 2007