SZINO v Minister for Immigration & Multicultural Affairs [2006] FCA 1629

FEDERAL COURT OF AUSTRALIA

SZINO v Minister for Immigration & Multicultural Affairs [2006] FCA 1629 SZINO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1441 of 2006

LINDGREN J

15 NOVEMBER 2006

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1441 OF 2006

BETWEEN: SZINO

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LINDGREN J DATE OF ORDER: 15 NOVEMBER 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed. 2. The applicant pay the first respondent's costs of the application for leave to 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 1441 OF 2006

BETWEEN: SZINO

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: LINDGREN J

DATE: 15 NOVEMBER 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant applies by an application filed on 28 July 2006 for leave to appeal from the judgment of the Federal Magistrates Court of Australia ('FMCA') given on 10 July 2006. Pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), the FMCA dismissed the applicant's application to that Court. The ground was that the applicant had failed to demonstrate an arguable case for the relief which he claimed. The FMCA also ordered the applicant to pay the costs and disbursements of the first respondent ('the Minister') of and incidental to the application, in an amount of $2500. 2 The application to the FMCA was an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') by which that Tribunal affirmed a decision of a delegate of the Minister not to grant a protection visa to the applicant. 3 The applicant's case was that he was a citizen of the People's Republic of China and had a reasonable ground to fear persecution if he were to return to China on the ground of religion. His case was that he was part of an underground church and had already suffered some persecution while he was in China. 4 The applicant arrived in Australia on 8 August 2005 and applied for the protection visa on 28 August 2005. The delegate refused his application on 28 September 2005. He applied to the Tribunal on 8 November 2005 for review of the delegate's decision, and the Tribunal made its decision on 31 January 2006, which was handed down on 23 February 2006. 5 The Tribunal did not believe the applicant. 6 Although there is no draft notice of appeal accompanying the application for leave to appeal, that application was accompanied by an affidavit made by the applicant. The affidavit identifies the following grounds of appeal: (1) the interpreter before the Tribunal did not interpret particular religious terms clearly and correctly owing to the interpreter's poor religious knowledge, with the consequence that the applicant was confused in dealing with questions put to him by the Tribunal member; (2) the Tribunal failed to comply with its obligation under s 424A(1) of the Migration Act 1958 (Cth) ('the Act'); (3) the Tribunal failed to comply with its obligations under s 425 of the Act; (4) the Tribunal failed to consider the applicant's claims fairly and properly; (5) the Tribunal failed to consider relevant important evidence in relation to the applicant's claims. 7 The applicant also filed a submission in support of his application for leave to appeal. That submission, filed on 26 October 2006, elaborated on the grounds under ss 424A(1) and 425. As to the former, the submission addressed a point referred to in the Tribunal's reasons for judgment, namely, that the applicant was not able to tell the Tribunal that Christians celebrate the resurrection of Christ on Easter Sunday. As to the ground under s 425, the submission asserted that the Tribunal member had not given the applicant a fair hearing, had treated him like a 'criminal', had raised doubts as to his answers, had raised difficulties just to spite him, and had seized on 'vague' or 'inconsistent' claims, while refusing to make clear to him what the Tribunal member's real concerns were.