SZJDW v Minister for Immigration and Citizenship [2007] FCA 1121

FEDERAL COURT OF AUSTRALIA

SZJDW v Minister for Immigration and Citizenship [2007] FCA 1121 SZJDW AND SZJDX v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL No NSD 737 of 2007

FINN J

1 AUGUST 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 737 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJDW

First Appellant

SZJDX

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: FINN J DATE OF ORDER: 1 AUGUST 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs. 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 737 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJDW

First Appellant

SZJDX

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: FINN J

DATE: 1 AUGUST 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal which refused the grant of Protection (Class XA) visas to the applicants who are husband and wife. Only the wife made substantive claims so, as a matter of convenience, I will refer to the couple collectively as the appellant. 2 It is important in this matter to note that the application was first dealt with at a "show cause" hearing under R 44.12 of the Federal Magistrates Court Rules. There were three issues before his Honour at that hearing, two being grounds contained in the application itself, the third, arising from written submissions that had previously been filed. The Federal Magistrate determined at that hearing that only two issues merited a final hearing and he made show cause orders accordingly against the respondent Minister in respect of those issues. They were: (a) whether the Tribunal erred in finding that the claimed particular social group of "Hindu-Muslim couple who eloped" is extrinsically identified by the shared fear of persecution; and (b) whether the Tribunal erred in considering past harm suffered as private in nature rather than as the actions of rogue officials. 3 The first of these related to the issue raised in submissions; the latter, to one of the two grounds of the application. Seemingly the other ground of the application was dismissed summarily under R 44.12, though no order to that effect is before me. That ground was not in issue – and could not have been put in issue by the applicant – at the final hearing giving rise to the judgment under appeal: see R 44.12(1)(b) and 13(2). 4 I refer to this procedural matter for this reason. The appellant's grounds of appeal to this Court set out as Ground 1 the substance of the ground not dealt with by the Federal Magistrate, it being alleged that the Federal Magistrate erred in law in dismissing the application without considering that ground. No application for leave to appeal has been made in relation to the dismissal of that part of the application: cf R 44.12(2). The appellant's written submissions, nonetheless, address the substance of the ground. I will deal with this matter as if an application for leave had been made.