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

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.