SZKPB v Minister for Immigration and Citizenship [2007] FCA 1773

FEDERAL COURT OF AUSTRALIA

SZKPB v Minister for Immigration and Citizenship [2007] FCA 1773

SZKPB AND SZKPC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1594 OF 2007

RARES J

2 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1594 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKPB

First Appellant

SZKPC

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RARES J

DATE OF ORDER: 2 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT:

1. Orders that the notice of appeal filed on 13 August 2007 be treated as an appeal duly instituted on that occasion. 2. Grants leave to the appellants to appeal from the decision of the Federal Magistrates Court given on 24 July 2007. 3. Sets aside the orders made by the Federal Magistrates Court on 24 July 2007. 4. Remits the matter to the Federal Magistrates Court. 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 1594 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKPB

First Appellant

SZKPC

Second Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: RARES J

DATE: 2 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) 1 The appellants have filed a notice of appeal from a decision of the Federal Magistrates Court dismissing their application for constitutional writ relief pursuant to r 44.12 of the Federal Magistrates Court Rules 2001 (Cth). A decision resulting in dismissal of a claim to the Federal Magistrates Court pursuant to that rule is an interlocutory decision because, as his Honour said, he was not satisfied that the application before him raised an arguable claim for relief. Dismissal of a proceeding on the basis that it fails to raise an arguable case is an interlocutory decision: Re Luck (2003) 203 ALR 1 at 3-4 [6]-[9] per McHugh ACJ, Gummow and Heydon JJ. 2 Accordingly, the appellants needed leave to appeal to this Court. The Minister has raised the competency of the appeal by a notice of motion that was returned at the hearing of the appeal. He correctly pointed to the requirements for leave to appeal to be granted, namely, that it was necessary for the court to be satisfied that the applicant for leave had established that the decision in question was attended with sufficient doubt to warrant the grant of leave and that substantial injustice would result from a refusal of leave to appeal. 3 The appellants, who are self-represented, have proceeded to deal with the substance of the matter and I have heard full argument on it. 4 His Honour reviewed the decision of the Refugee Review Tribunal affirming the delegate of the Minister's decision to refuse the appellants protection visas. He concluded that none of the grounds put forward in the appellants' amended application before him raised an arguable case. The amended application was not replete with detailed grounds for his Honour's consideration. However, in substance, it contained ground 2, which asserted that the tribunal had failed to see that the appellants satisfied the four key elements of the definition of a refugee in the Refugees Convention. They also asserted, in ground 6, that the tribunal had failed to see that they had been chased by 'BJP religious hard nuts even when they were far away in Mumbai'.