SZNZR v Minister for Immigration and Citizenship [2010] FCA 549 (14 May 2010)

Last Updated: 1 June 2010

FEDERAL COURT OF AUSTRALIA

SZNZR v Minister for Immigration and Citizenship [2010] FCA 549

Citation:		SZNZR v Minister for Immigration and Citizenship [2010] FCA 549
Parties:		SZNZR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 144 of 2010
Judges:		SPENDER J
Date of judgment:		14 May 2010
Legislation:		Federal Court of Australia Act (1976) (Cth) s 24(1A) Federal Magistrates Court Rules 2001 Rule 44.12(1)(a)
Cases cited:		Decor Corporation Pty Ltd v Dart Industries Incorporated [1991] FCA 655; (1991) 33 FCR 397 cited Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 cited
Date of hearing:	14 May 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	10
Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondents:	DLA Phillips Fox

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 144 of 2010

BETWEEN:

SZNZR Applicant

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

JUDGE:	SPENDER J
DATE OF ORDER:	14 MAY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal is dismissed.
2. The applicant to pay the costs of the first respondent, to be taxed if not agreed.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 144 of 2010

BETWEEN:

SZNZR Applicant

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

JUDGE:	SPENDER J
DATE:	14 MAY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal against the judgment and orders of Driver FM, delivered on 27 January 2010. The learned Federal Magistrate dismissed the application for judicial review of the decision of the Refugee Review Tribunal (the RRT) signed on 30 September 2009. The basis of the dismissal was Rule 44.12(1)(a) of the Federal Magistrates Court Rules. That rule provides that on a show cause hearing, the Court may, if it is not satisfied that the application has raised an arguable case for relief, dismiss the application. A dismissal under Rule 44.12(1)(a) is interlocutory and therefore leave to appeal is required as a consequence of s 24(1A) of the Federal Court of Australia Act (1976) (Cth).
2. The Full Court of the Federal Court in Decor Corporation Proprietary Limited v Dart Industries Incorporated [1991] FCA 655; (1991) 33 FCR 397 (Decor Corporation), specified what has to be shown on an application for leave to appeal. An applicant for leave has to show that there is sufficient doubt as to the correctness of the judgment below to warrant review by a Full Court, or by a judge exercising the appellate jurisdiction of the Court, and further, that if the judgment below were to be wrong, there would be substantial injustice suffered by the applicant if leave was refused.
3. The applicant is a female citizen of China, who claimed to fear persecution and harassment from local officials in China who frequented her tea shop.
4. The RRT did not accept the applicant’s claims and its findings were essentially based on its assessment of the credibility of the applicant. As McHugh J has explained in Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407, findings based on credibility are findings of fact which are the province of the RRT. It is seldom appreciated by those who seek a judicial review in the Federal Magistrates Court or appeal to the Federal Court that there are very constrained grounds on which this Court can interfere with a determination by the RRT.
5. While the applicant has simply asserted that the proceedings, both in the RRT and before the Federal Magistrate, were unfair and biased, nothing has been particularised to demonstrate any arguable case of jurisdictional error by the RRT.
6. Federal Magistrate Driver, particularly at paras [7] and [9], was unable to identify any arguable error in the RRT’s approach to the conduct of the review or its treatment of the applicant’s claims and evidence. The grounds of the applicant’s proposed appeal do not indicate any basis upon which this court can interfere with the judgment of the Federal Magistrate.
7. The complaint of bias was not raised before the Federal Magistrate and lacks particularisation in any event. In those circumstances, there are no grounds for thinking there is any merit in that ground. Further, there is nothing to suggest that there was procedural unfairness in the way the Federal Magistrate delivered an ex tempore judgment concerning whether there was an arguable case for the applicant.
8. There is nothing to suggest that the conclusions of the learned Federal Magistrate were incorrect at law. The decision of the Federal Magistrate does not satisfy the tests that Decor Corporation requires. His Honour’s decision is not attended with doubt sufficient to warrant the grant of leave to appeal. There has been no error shown concerning the decision of the Federal Magistrate. While it is clear that the appellant disagrees with the conclusion of the RRT, no jurisdictional error on the part of the RRT has been shown.
9. The application for leave to appeal must be dismissed.
10. The orders of the Court are that the application for leave to appeal is dismissed, and the applicant is to pay the costs of the first respondent, to be taxed if not agreed.
    

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 1 June 2010