SZLLG v Minister for Immigration & Citizenship [2008] FCA 1644

FEDERAL COURT OF AUSTRALIA

SZLLG v Minister for Immigration & Citizenship [2008] FCA 1644

SZLLG v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1224 of 2008

PERRAM J

7 NOVEMBER 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1224 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLLG

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: PERRAM J

DATE OF ORDER: 7 NOVEMBER 2008

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent in the sum of $2,100.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1224 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLLG

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: PERRAM J

DATE: 7 NOVEMBER 2008

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The present appellant is a national of India who arrived in Australia on 27 March 2007 and applied for a protection visa. A protection visa is the kind of visa applied for where a person wishes to seek refugee status in Australia. In order to make out an entitlement to a protection visa, it is necessary for an applicant to demonstrate to the satisfaction of the Minister that the person is someone to whom Australia has protection obligations by reason of Article 1 of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The application for the protection visa was dealt with by a delegate of the Minister. The application for a protection visa was refused. 2 The provisions of the Migration Act 1958 (Cth) provide for a person who has had an application for a protection visa refused to apply for a review of that decision to the Refugee Review Tribunal ("the Tribunal"). The appellant availed himself of that entitlement. The hearing before the Tribunal took place on 12 July 2007 and the Tribunal handed down its decision affirming the delegate's decision on 21 August 2007. The essential basis of the appellant's argument before the Tribunal was that he had become disaffected from the CPI(M), a species of the Communist Party in India, in consequence of which he had become blamed for a number of problems by that party and had joined the CPI(ML). 3 The Tribunal found that the evidence of the appellant was "vague and not convincing." The Tribunal was also not satisfied that the appellant had in fact been a member of the CPI(ML). Despite repeated questioning and prompting by the Tribunal, the appellant's evidence about why he left the CPI(M) to join the CPI(ML) and his role in the CPI(ML) was very general and did not convince the Tribunal. In the circumstances, the Tribunal affirmed the decision of the delegate. There is, following an adverse decision by the Tribunal, no further appeal in the sense that that word is generally used. 4 However, s 476 of the Migration Act 1958 (Cth) confers upon the Federal Magistrates Court the same jurisdiction that the High Court has under s 75(v) of the Constitution; that is, it confers upon the Federal Magistrates Court the ultimate supervisory jurisdiction over Commonwealth officers which the High Court has as a matter of entrenched jurisdiction. That jurisdiction operates, at least in the High Court, as a safeguard to ensure that the executive government is at all times maintained within the limits of the law. So characterised, it is possible to see that the kind of jurisdiction contemplated by s 75(v) is not a jurisdiction which permits general review in circumstances where there is some element of dissatisfaction with an administrative decision. 5 There are extensive laws in this country both under statute and at common law for the review of decisions of an administrative character. Ordinarily, those regimes would provide a means by which decisions of the Tribunal might be challenged. However, the effect of s 474 of the Migration Act 1958 (Cth) is to have carved out from those regimes that kind of review. It follows that the only review which is available of a decision of the Tribunal is that contemplated in s 476. This is a very limited kind of review. In order to make out an entitlement to relief in the Federal Magistrates Court, it was necessary for the present appellant to demonstrate to the Federal Magistrates Court the existence of a jurisdictional error, for it was only if such an error was established that jurisdiction to grant relief of the kind referred to in s 75(v) would arise. 6 Before the learned federal magistrate a number of grounds were asserted by the appellant. The federal magistrate dealt with those grounds at great length and on 24 July 2008 found that none of them had succeeded in establishing the existence of a jurisdictional error. The application for constitutional writs was therefore dismissed. An appeal lies from a decision of a federal magistrate in a "migration decision" to this Court. However, the provisions of the Federal Court of Australia Act 1976 (Cth) require in such cases that the appeal is to be heard not by a Full Court but by a single judge of this Court. 7 The appellant filed, on 6 August 2008, a notice of appeal. That notice of appeal raised two grounds only. The grounds were stated as follows: 1. The single judge of the Federal Magistrate Court in his Honours judgment delivered on the 24 July 2008 failed to find error of law, jurisdictional error, procedural fairness and relief under Section 39B of the Judiciary Act 1903.