SZHTY v Minister for Immigration and Citizenship

Case [2007] FCA 1223

FEDERAL COURT OF AUSTRALIA

SZHTY v Minister for Immigration and Citizenship [2007] FCA 1223

SZHTY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 889 OF 2007

STONE J
10 AUGUST 2007
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 889 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHTY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

STONE J

DATE OF ORDER:

10 AUGUST 2007

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed

2.The appellant pay the first respondent’s costs fixed in the amount of $1,500.

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 889 OF 2007
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHTY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

STONE J

DATE:

10 AUGUST 2007

PLACE:

SYDNEY

REASONS FOR JUDGMENT

  1. The appellant is a citizen of the Philippines who arrived in Australia on 2 May 2005. Her application for a protection visa was made shortly after her arrival and was dismissed in turn by a delegate of the first respondent and the Refugee Review Tribunal. Her application for judicial review was dismissed by a Federal Magistrate on 30 April 2007: [2007] FMCA 696.

    PROCEDURAL BACKGROUND

    Protection visa application

  2. The appellant claims to live in a Muslim dominated region of the Philippines.  She claims that her brother-in-law, who is a Christian, was elected to the local council and subsequently she was victimised in her workplace because of his political opinions, presumably on the basis that those opinions were imputed to her.  She also claimed that the harassment was related to disputes over the ownership of certain land.  She claims that members of her family have been killed for political reasons, and that the caretaker of the disputed land had been “gunned down”. 

    Proceedings before the Tribunal

  3. By letter of 28 September 2005, the Tribunal advised the appellant that it was unable to make a favourable decision on the material before it and invited the appellant to attend a hearing scheduled for 4 November 2005.  The appellant advised the Tribunal that she did not wish to attend the hearing and consented to the Tribunal proceeding to make a decision in her absence.  Not surprisingly the Tribunal decided that, on the material before it, it was not satisfied that the criteria for the grant of a protection visa had been satisfied.  Consequently the Tribunal rejected the appellant’s application.

    Proceedings before the Federal Magistrate

  4. The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.  His Honour found that no reviewable error on the part of the Tribunal had been established.  In response to submissions put by the appellant, which his Honour said were prepared by her migration agent Mr Chandra Jayawardena, the…

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Details
AGLC
SZHTY v Minister for Immigration and Citizenship [2007] FCA 1223
Case
[2007] FCA 1223
Decision Date

CaseChat Overview and Summary

The appellant, a citizen of the Philippines, sought judicial review of the decision of the Federal Magistrate to dismiss her application for protection visa, which was initially rejected by the delegate of the Minister for Immigration and Citizenship and the Refugee Review Tribunal. The appellant arrived in Australia in 2005 and claimed that she was victimised in her workplace due to her brother-in-law’s political opinions, and that her family had been killed for political reasons. The Tribunal rejected her application for a protection visa on the basis that it was not satisfied that the criteria for the grant of a protection visa had been satisfied. The Federal Magistrate dismissed her application for judicial review, finding that no reviewable error on the part of the Tribunal had been established. The appellant appealed to the court on the basis that the Federal Magistrate erred in failing to detect errors committed by the Tribunal.

The court was required to determine whether the Federal Magistrate erred in dismissing the appellant’s application for judicial review of the Tribunal’s decision. The court had to consider whether the Federal Magistrate correctly found that no reviewable error on the part of the Tribunal had been established, and whether the appellant’s claims of error were in fact attempts to have the court review the factual findings made by the Tribunal.

The court found that the Federal Magistrate did not err in dismissing the appellant’s application for judicial review. The court held that the appellant’s claims of error were in fact attempts to have the court review the factual findings made by the Tribunal, which was not permissible. The court further held that the Tribunal did not commit any error in rejecting the appellant’s application for a protection visa. The court found that the Tribunal was not required to make alternative arrangements for the hearing to take place by video or to be held in a convenient location, as the appellant had consented to the Tribunal proceeding to make a decision in her absence. The court concluded that the appeal must be dismissed with costs.

The court ordered that the appeal be dismissed and that the appellant pay the first respondent’s costs fixed in the amount of $1,500.

Orders

Orders of the court

1. The appeal be dismissed

2. The appellant pay the first respondent’s costs fixed in the amount of $1,500.

Background

Background to the litigation

The appellant is a citizen of the Philippines who arrived in Australia on 2 May 2005. Her application for a protection visa was made shortly after her arrival and was dismissed in turn by a delegate of the first respondent and the Refugee Review Tribunal. Her application for judicial review was dismissed by a Federal Magistrate on 30 April 2007: [2007] FMCA 696.PROCEDURAL BACKGROUNDProtection visa application The appellant claims to live in a Muslim dominated region of the Philippines. She claims that her brother-in-law, who is a Christian, was elected to the local council and subsequently she was victimised in her workplace because of his political opinions, presumably on the basis that those opinions were imputed to her. She also claimed that the harassment was related to disputes over the ownership of certain land. She claims that members of her family have been killed for political reasons, and that the caretaker of the disputed land had been “gunned down”. Proceedings before the Tribunal By letter of 28 September 2005, the Tribunal advised the appellant that it was unable to make a favourable decision on the material before it and invited the appellant to attend a hearing scheduled for 4 November 2005. The appellant advised the Tribunal that she did not wish to attend the hearing and consented to the Tribunal proceeding to make a decision in her absence. Not surprisingly the Tribunal decided that, on the material before it, it was not satisfied that the criteria for the grant of a protection visa had been satisfied. Consequently the Tribunal rejected the appellant’s application.Proceedings before the Federal Magistrate The appellant sought judicial review of the Tribunal’s decision in the Federal Magistrates Court. His Honour found that no reviewable error on the part of the Tribunal had been established. In response to submissions put by the appellant, which his Honour said were prepared by her migration agent Mr Chandra Jayawardena, the Federal Magistrate cited Minister for Immigration and Multicultural and Indigenous Affairs v VSAFof 2003 [2005] FCAFC 73 and stated (at [6]) that:[I]t is clear that the Tribunal can fail to reach the state of satisfaction required because insufficient evidence is provided to it. That is what happened in the instant case and therefore the Tribunal did not fall into jurisdictional error in concluding that it was unable to grant a visa and was required to affirm the decision under review.THIS APPEAL On 21 May 2007, the appellant filed a notice of appeal in this Court, setting out two grounds of appeal. Both assert that the Federal Magistrate erred in failing to detect errors committed by the Tribunal. The grounds of appeal and the subsequent written submissions of the appellant are convoluted and confused. Although wrapped in language that suggests legal technicalities they could only sensibly be interpreted as an attempt to have this Court review the factual findings made by the Tribunal. From the bar table, the appellant said that she had drafted the submissions. This is surprising as they seem to have been drafted by someone who had a reasonable familiarity with legal language and the provisions of the Migration Act, albeit with little, if any, understanding.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

STONE J
The appellant’s final written contention is that the Tribunal should have written to the appellant pursuant to s 424 when it received her negative response to the hearing invitation, and made alternative arrangements for the hearing to either take place by video, or to be held in Griffith or some other convenient location. Section 426A provides that if the Tribunal issues an invitation and an applicant does not appear, it is not required to take any further action to enable the applicant to appear before it.Conclusion For the above reasons the appeal must be dismissed with costs. The Minister seeks costs fixed in the amount of $1800. From experience in similar matters I am inclined to think that this is on the high side. The Minister did not oppose the making of a costs order in the lesser amount of $1,500. I so order.

Ratio Decidendi

Legal Principle Established

Established by: STONE J

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