SZJXL v Minister for Immigration & Citizenship [2007] FCA 1275

FEDERAL COURT OF AUSTRALIA

SZJXL v Minister for Immigration & Citizenship [2007] FCA 1275

SZJXL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 586 OF 2007

BENNETT J

31 JULY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

SYDNEY DISTRICT REGISTRY NSD 586 OF 2007

BETWEEN: SZJXL

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BENNETT J

DATE OF ORDER: 31 JULY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal is dismissed. 2. The applicant is to pay the first respondent's costs. 3. Leave is granted to the first respondent, if it wishes to pursue an order for fixed costs, to file evidence in support of that application by sending such evidence to the chambers of Bennett J by 4.00 pm on 3 August 2007. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

SYDNEY DISTRICT REGISTRY NSD 586 OF 2007

BETWEEN: SZJXL

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BENNETT J

DATE: 31 JULY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant seeks leave to appeal from a decision of Smith FM in SZJXL v Minister for Immigration & Anor [2007] FMCA 482. His Honour decided that the applicant was not able to identify an arguable jurisdictional error affecting the decision of the Refugee Review Tribunal (at [12]). His Honour was not satisfied that the application raised an arguable claim for the relief sought and dismissed the case under r 44.12(1)(a) of the Federal Magistrates Court Rules (at [18]). Leave to appeal is required because his Honour's orders were interlocutory (r 44.12(2)). Such leave should be granted if the decision is attended by sufficient doubt to warrant it being reconsidered by the Court and where substantial injustice would be done if the decision were allowed to stand. 2 In her original visa application, the applicant claimed that she was afraid to return to China because of her practice of Falun Gong. At the hearing before the Tribunal, the applicant advised the Tribunal that she was not aware of the contents of her written claims and did not pursue those claims at the hearing. The Tribunal found, based upon what it was told by the applicant at the hearing, that the claims earlier made about her interest and involvement in Falun Gong had no basis in fact. The Tribunal then proceeded to consider the applicant's claim to have a well-founded fear of persecution if she returned to China because she had applied for refugee status in another country. At this hearing before me the applicant, who appears in person assisted by an interpreter, has confirmed that the Tribunal's record of what took place at the hearing was correct. 3 The draft notice of appeal proposes three grounds of appeal.