SZJTA v Minister for Immigration and Citizenship [2007] FCA 1289

FEDERAL COURT OF AUSTRALIA

SZJTA v Minister for Immigration and Citizenship [2007] FCA 1289

SZJTA v Minister for Immigration and Citizenship [2007] FMCA 159 upheld SZJTA v MINISTER FOR IMMIGRATION AND CITIZENSHIP NSD 350 OF 2007

GYLES J

13 AUGUST 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 350 OF 2007

BETWEEN: SZJTA

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: GYLES J

DATE OF ORDER: 13 AUGUST 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

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

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 350 OF 2007

BETWEEN: SZJTA

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: GYLES J

DATE: 13 AUGUST 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for leave to appeal from a decision of the Federal Magistrates Court which dismissed an application pursuant to r 44.12(1)(a) of the Federal Magistrate Court Rules 2001 (SZJTA v Minister for Immigration and Citizenship [2007] FMCA 159). 2 The sequence of events is that the applicant for leave filed an application to the Federal Magistrates Court under the Migration Act 1958 (Cth) (the Act) to show cause why a remedy should not be granted in exercise of that Court's jurisdiction under s 476 of the Act in respect of a decision of the Refugee Review Tribunal (the Tribunal) which affirmed a decision of a delegate of the respondent (the Minister) to refuse a protection visa. There were two grounds stated for the application: "1. The Tribunal had bias against me and could not consider my application according to Law. The decision was made base on assumption of the Tribunal. The Tribunal failed to consider my application according to S91R of the Migration Act 1958. 2. The Tribunal failed to consider my application according to S424A of the Migration Act 1958. The Tribunal had not notified me the reason or part of the reason for affirming the decision before making a decision on my application. I was not given an opportunity to comment on the reason." 3 The affidavit in support of the application repeated in shorter form those two grounds and annexed a copy of the decision record of the Tribunal in question. The solicitor for the Minister then filed a response in the following terms: "In the application filed on 23 November 2006, no evidence is provided to support the allegation of bias, and no particulars are provided to support the alleged breach of section 424A. Therefore, the First Respondent opposes the application on the basis that no reasonable cause of action is shown." 4 An amended application was filed on 29 December 2006. The first ground, slightly differently expressed, again referred to s 424A and purported to set out particulars of that ground. The second ground of bias and failure to consider the application was put in similar form to the previous ground and not elaborated upon further. 5 Rule 44.02 of the Federal Magistrates Court Rules governs matters commenced in that Court and r 44.05 deals with applications for an order to show cause relating to the exercise of jurisdiction pursuant to s 476 of the Act. Rule 44.05(2) provides that an application must be supported by an affidavit including, inter alia, any document or other evidence upon which the applicant seeks to rely. Rule 44.06 provides for the response to which I have referred above. 6 Rule 44.11 provides that, amongst other things: "at the first court date for an application for an order to show cause, the Court or a Registrar may give orders or directions for …