SZILL v Minister for Immigration and Citizenship [2007] FCA 1439

FEDERAL COURT OF AUSTRALIA

SZILL v Minister for Immigration and Citizenship [2007] FCA 1439 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 referred to SZILL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR NSD700 OF 2007 12 SEPTEMBER 2007

EMMETT J

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD700 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZILL

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE OF ORDER: 12 September 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's 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 NSD700 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZILL

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE: 12 september 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant and her husband, who are nationals of Nepal, arrived in Australia on 1 June 2005. On 13 July 2005, they lodged an application for protection (Class XA) visas under the Migration Act 1958 (Cth) (the Act). The appellant's husband claimed to be a refugee. The appellant applied for a protection visa as a member of her husband's family unit. 2 On 10 October 2005, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused to grant protection visas and on 2 November 2005, the appellant and her husband applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for review of the delegate's decision. The appellant and her husband were invited to attend a hearing before the Tribunal. The appellant's husband did so on 20 December 2005 and gave evidence to the Tribunal. The appellant made no claims of her own, her application being dependent on her husband's claims. On 20 January 2006, the Tribunal affirmed the decision not to grant protection visas. The appellant and her husband were notified of that decision on 9 February 2006. 3 On 1 March 2006, the appellant and her husband applied to the Federal Magistrates Court for judicial review of the Tribunal's decision. After a hearing on 6 November 2006, the Federal Magistrates Court ordered on 3 April 2007, for reasons published on that day, that the application be dismissed. On 23 April 2007, the appellant and her husband filed notice of appeal to the Federal Court from the orders of the Federal Magistrates Court. 4 At some stage, although the time is not clear, the appellant's husband departed Australia and returned to Nepal. In those circumstances, the appellant's husband was removed as an appellant and the appeal proceeded on that basis. The Minister took no point concerning the standing of the appellant to prosecute the appeal and made no submission that the appeal should be dismissed on a discretionary basis by reason of the departure of the appellant's husband. 5 Since only the appellant's husband made substantive claims in relation to the grant of visas and since the appellant's husband was the only one to claim to have a well founded fear of persecution for a Convention reason, it is convenient to refer to the appellant's husband as the applicant.