SZLWE v Minister for Immigration and Citizenship [2008] FCA 1343

FEDERAL COURT OF AUSTRALIA

SZLWE v Minister for Immigration and Citizenship [2008] FCA 1343

SZLWE v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 979 OF 2008

PERRAM J

19 SEPTEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 979 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLWE

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: PERRAM J

DATE OF ORDER: 19 SEPTEMBER 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The Appellant pay the costs of the First Respondent. 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 979 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLWE

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: PERRAM J

DATE: 19 SEPTEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from the Federal Magistrates Court. That court dismissed the Appellant's claim for writs of certiorari and mandamus directed to the Second Respondent. To understand the issues which arise in the appeal it is necessary to say a few words about the Appellant's circumstances. 2 The Appellant arrived from Lebanon in Australia on 9 March 2007. On 1 June 2007, he applied for a protection visa which is the kind of visa applied for where a person seeks asylum on the basis that he or she is a refugee. By s 36 of the Migration Act 1958 (Cth) ("the Act"), a protection visa could be granted by the Minister to the Appellant if the Minister were satisfied that the Appellant was a non-citizen to whom "Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol". The Refugees Convention is defined in s 5 of the Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. Article 1A(2) of that Convention defines a refugee as a person who: … owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. 3 Although the question for the Minister was whether Australia had protection obligations to the Appellant, the question of whether he could be satisfied that the Appellant was a refugee within this definition was an important part of the decision making process. 4 The Minister was not required to resolve the Appellant's application personally. By s 496 the Minister could delegate any of his functions under the Act which, naturally enough, included those under s 36. The Appellant's application was processed by such a delegate who, on 27 August 2007, declined to grant a protection visa. The Appellant was not left without a remedy. Part 7 of the Act provides a regime by which such decisions may be reviewed. Section 457 establishes the Refugee Review Tribunal ("the Tribunal") and ss 411 and 414 imposed upon the Tribunal, in this case, the duty to review the decision made by the delegate. On 17 September 2007, the Appellant availed himself of this regime and applied to the Tribunal for a review of that decision. Pursuant to s 418, the Secretary to the Department conveyed to the Tribunal the delegate's reasons for the decision together with its file. 5 Based on those materials, the Tribunal was not satisfied that it could accede to the Appellant's application for a review. Accordingly, it was obliged by s 425 to invite the Appellant to appear before it to give evidence and present arguments about the issues relating to the review. A hearing for that purpose took place on 6 December 2007. On 20 December 2007, the Tribunal delivered its decision by which it affirmed the delegate's decision not to grant the protection visa. 6 It is useful to note at the outset three aspects of the Tribunal's decision. First,it misdescribed the Appellant as having been a member of the Lebanese armed forces when, in fact, he had been a member of a militia known as the Lebanese Forces. Secondly,it found that the Appellant did not fear persecution on the basis of a political opinion. Thirdly,after delivering its reasons for affirming the delegate's decision it sent them to a barrister and migration agent, John Eyeson-Annan, at a time when it knew that Mr Eyeson-Annan had been suspended as a registered migration agent. 7 The Appellant then sought the issue of writs of certiorari and mandamus from the Federal Magistrates Court. Its jurisdiction to grant these writs was circumscribed by the provisions of s 476 of the Act and the High Court's decision in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. The combined effect of those matters is that review in the Federal Magistrates Court is only available where jurisdictional error is established.