Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
SZLPF v Minister for Immigration and Citizenship [2008] FCA 1692
Migration Act 1958 (Cth) ss 422B, 424A SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190 applied NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 214 ALR 264 cited Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 74 ALJR 405 cited SZKLK v Minister For Immigration [2008] FCA 1125 cited SZJGV v Minister for Immigration and Citizenship (2008) 247 ALR 451 cited SZLPF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD914 of 2008
LOGAN J
10 NOVEMBER 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD914 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZLPF
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE: LOGAN J
DATE OF ORDER: 10 NOVEMBER 2008
WHERE MADE: SYDNEY
THE COURT ORDERS THAT:
1. The Appeal is dismissed. 2. The Appellant is to pay the First Respondent's costs of and incidental to the appeal, to be taxed if not agreed. 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 NSD914 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZLPF
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE: LOGAN J
DATE: 10 NOVEMBER 2008
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 The Appellant is a citizen of the People's Republic of China. He came to Australia on 7 February 2007. The following month he lodged with the Department of Immigration and Citizenship an application for what is known as a protection visa. The Appellant's protection visa application was refused by a delegate of the Minister for Immigration and Citizenship on 1 June 2007. Later that month, and within the time permitted by the Migration Act 1958 (Cth), the Appellant lodged an application for the review by the Refugee Review Tribunal (the Tribunal) of the Minister's delegate's decision. 2 On 19 September 2007, for reasons which it then published, the Tribunal decided to affirm the decision of the Minister's delegate not to grant to the applicant a protection visa. That decision was communicated to the Appellant by the Tribunal under cover of a letter dated 11 October 2007. The Appellant then sought the judicial review of the Tribunal's decision by the Federal Magistrates Court. On 30 May 2008, for reasons then published, the Federal Magistrates Court dismissed the Appellant's judicial review application. It is from that decision that the Appellant now appeals to this Court. 3 The Appellant advances three grounds of appeal. They are as follows. 1. The Tribunal breached the rules or procedural fairness by failing to give the applicant an opportunity to comment on information which the Tribunal relied on. Therefore, the Tribunal failed to comply with s 424A of the Migration Act. 2. The Tribunal failed to take all relevant information into consideration applying a real chance test in determining whether the applicant will be persecuted by the Chinese Government or the local authority in his hometown if he returns to China. 3. The Tribunal rejection of my refugee claims is unreasonable and has been affected by pre-judgment. I was an underground Christian when I was in China. I have experienced persecution and mistreatment from the Chinese government. 4 These grounds are essentially a replication of the grounds of review which were advanced before the Federal Magistrate. On their face, the grounds do not seek to engage with the Federal Magistrate's decision and to highlight alleged errors of law made by the Federal Magistrate. It is important to recall that an appeal to this Court is not an exercise of original jurisdiction in respect of the judicial review of the decision of the Tribunal. Rather, it is an exercise of appellate jurisdiction in respect of a decision of a Federal Magistrate. 5 One way, perhaps, in the circumstances, of dealing with this appeal would be to treat it as failing to identify any error on the part of the Federal Magistrate and therefore without any substance. Another way, and in my opinion the correct and also humane way of dealing with the appeal, is to treat the grounds as an endeavour by the Appellant to highlight the bases upon which the Federal Magistrate ought to have found administrative law error in the decision of the Tribunal. That was the approach which the Minister took in the oral and written submissions made to the Court. I respectfully commend the Minister and his legal representatives for so doing. 6 I turn then to consider each of the grounds of appeal advanced.
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