SZJFN v Minister for Immigration & Citizenship [2007] FCA 849 (10 May 2007)

Last Updated: 4 July 2007

FEDERAL COURT OF AUSTRALIA

SZJFN v Minister for Immigration & Citizenship [2007] FCA 849

SZJFN AND SZJFO v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 364 OF 2007




DOWSETT J
10 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 364 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	DOWSETT J
DATE OF ORDER:	10 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant 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 364 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	DOWSETT J
DATE:	10 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a decision of a federal magistrate declining relief pursuant to s 476 of the Migration Act 1958 (Cth). That relief was sought in connection with a decision of the Refugee Review Tribunal (the "Tribunal") affirming a decision of a delegate of the Minister to decline the issue of protection visas to the appellants. The appellants are husband and wife. Only the husband has appeared today. It seems that the husband originally applied for a protection visa, the wife applying as a member of his family. However, in the Tribunal, she was treated as having her own claim to fear persecution for a Convention reason, such claim being upon the same basis as her husband’s claim.

2 The appellants entered Australia in 2005 and applied for protection visas on 24 November 2005. The ground upon which they relied was fear of persecution for a Convention reason, namely religious belief. They claim to be members of a Christian group described as the "Shouters". That claim was rejected by the Minister’s delegate and by the Tribunal upon the basis of inconsistency, lack of detail and lack of knowledge of that religious group. The Tribunal’s findings and reasons are extensive and logical. Although the male appellant has made it clear that he does not accept them, there is no basis for believing that they are not based upon an available view of the evidence. As I have said, the Tribunal rejected both claims. The proceedings before the magistrate were for review based upon alleged jurisdictional error. However the magistrate considered that no jurisdictional error had been demonstrated.

3 Counsel for the Minister has drawn my attention to a possible view of the appellant’s application in the Magistrate’s Court which might raise an issue of lack of procedural fairness. Ms Clegg told me that persons appearing for unsuccessful applicants for protection visas have suggested that a particular decision of the High Court may have significance in this context. The decision is SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs at [2006] HCA 63; (2006) 231 ALR 592. It has been suggested that the case is authority for the proposition that the Tribunal must disclose its reasons for rejecting an applicant’s account in advance of so doing. I do not understand SZBEL to be authority for that proposition. It certainly requires that the proceedings in question be examined to determine whether or not there has in fact been procedural unfairness. The particular unfairness in that case was that the Tribunal disposed of the matter on the basis of its rejection of matters which were accepted by the delegate at first instance, without first advising the relevant applicant of its intention to do so. I accept that those events constituted procedural unfairness in that case, but there is no such problem in the present case.

4 The grounds of appeal raised by the appellants are:

• that the Tribunal failed to consider the relevant information of ‘my claims’;
• that the Tribunal did not fully consider ‘my current situation’; and
• that the Tribunal failed to consider the likely chance of the appellants being imprisoned if returned to China.

5 Although the appellants may allege jurisdictional error, the above grounds do not reflect the basis upon which the Tribunal disposed of the matter. The Tribunal simply did not accept the male appellant’s claim because it was not willing to act on his evidence. That was also the basis upon which the delegate had disposed of the matter. In the circumstances, it follows that no basis was demonstrated before the magistrate for relief of the kind sought, and no error has been demonstrated in the magistrate’s decision. The appeal must therefore be dismissed. The female applicant’s claim would fail for the same reason. However it is probably better that it be dismissed upon the basis of her failure to appear today. I order that the appellants pay the first respondent’s costs of the appeal.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 1 June 2007

Counsel for the First Appellant:	The First Appellant appeared in person.
Counsel for the Second Appellant:	There was no appearance by the Second Appellant.
Counsel for the First Respondent:	Ms L Clegg
Solicitor for the First Respondent:	Australian Government Solicitor
Counsel for the Second Respondent:	There was no appearance by the Second Respondent
Date of Hearing:	10 May 2007
Date of Judgment:	10 May 2007