SZDFO v Minister for Immigration

FEDERAL COURT OF AUSTRALIA

SZDFO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1192

SZDFO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1012 OF 2004

ALLSOP J
9 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1012 of 2004

BETWEEN:	SZDFO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	9 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.  The appeal be dismissed.

2.  The appellant pay the respondent's costs.

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	N 1012 of 2004

BETWEEN:	SZDFO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	9 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from orders made by a Federal Magistrate in which the learned Federal Magistrate dismissed an application made by the appellant for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 21 July 1998. 

2. The Chief Justice has given a direction that the matter be heard by one judge rather than three in the exercise of the appellate jurisdiction of this Court. 

3. For the benefit of the appellant, it is appropriate to first identify the different roles and functions of the Court and the Federal Magistrates Court as compared to the role of the Tribunal. 

4. The Tribunal in making its decision in 1998 to affirm the decision of a delegate of the Minister not to grant a protection visa was undertaking and executing the executive power of the Commonwealth pursuant to the Migration Act 1958 (Cth). The Tribunal standing in the shoes of the delegate of the Minister re-examined the factual material and dealt with the claims of the then applicant on the merits afresh.

5. The task of the Tribunal, as was the task of the Minister, was to assess and consider all the claims of the applicant including the issue as to whether the applicant was owed protection obligations by this country under the Refugee Convention as amended by the Protocol. It is important to understand, however, that s 65 of the Migration Act  requires that the Tribunal grant a visa only if it is satisfied of certain things.

6. Relevantly here, that required, for the Tribunal to grant a protection visa, that it be satisfied that Australia owed protection obligations under the Convention to the appellant.  If the Tribunal was not satisfied that Australia owed those protection obligations, it was obliged by the statute to refuse the grant of a visa.  Thus, the hearing before the Tribunal was the place where the claims of the appellant were dealt with on their merits. 

7. The legislative structure of the Migration Act together with the Judiciary Act provide for limited grounds of review of the decision of the Tribunal by the Court.  The hearing…