SZMWR v Minister for Immigration & Citizenship [2009] FCA 863

FEDERAL COURT OF AUSTRALIA

SZMWR v Minister for Immigration & Citizenship [2009] FCA 863

SZMWR v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 400 of 2009

BESANKO J

7 AUGUST 2009

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION NSD 400 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMWR

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J

DATE OF ORDER: 7 AUGUST 2009

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal fixed in the sum of $2,600. 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

GENERAL DIVISION NSD 400 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZMWR

Appellant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: BESANKO J

DATE: 7 AUGUST 2009

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Federal Magistrates Court: SZMWR v Minister for Immigration & Citizenship & Anor [2009] FMCA 321. On 23 April 2009, that court made an order dismissing the appellant's application to the Federal Magistrates Court for constitutional writs directed to the Refugee Review Tribunal ("the Tribunal"). 2 The appellant is an Indian national. She arrived in Australia on 18 February 2008. She applied for a Protection (Class XA) visa ("protection visa") on 31 March 2008. A delegate of the Minister for Immigration and Citizenship refused her application on 15 May 2008. The appellant applied to the Tribunal for a review of the delegate's decision. The Tribunal conducted a review and, in a decision signed on 9 September 2008, affirmed the decision of the delegate refusing to grant the appellant a protection visa. On 27 October 2008, the appellant made an application to the Federal Magistrates Court for constitutional writs directed to the Tribunal. She amended her application on 2 December 2008. As I have said, on 23 April 2009, the Federal Magistrates Court made an order dismissing the appellant's application. 3 In essence, the appellant's ground for seeking constitutional writs directed to the Tribunal was that the Tribunal had not considered her claim for refugee status on the basis that she had a well-founded fear of persecution for reasons of political opinion. 4 The appellant was represented before the Federal Magistrates Court and the submissions made on her behalf were that the Tribunal did not give realistic or genuine consideration to the appellant's claims, which was a denial of natural justice and procedural fairness, and that the Tribunal concluded its review before giving the appellant a real and meaningful opportunity to present her case. The error made by the Tribunal was also characterised by the appellant as a failure to consider a critical piece of evidence fundamental to the appellant's contentions of a well-founded fear of persecution for a Convention reason. The appellant was not represented at the hearing before me. She did not prepare written submissions. Her grounds of appeal were as follows: "2. The single Judge of the Federal Magistrate Court in his Honours judgement delivered on the 23 April 2009 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903.