SZJGT v Minister for Immigration & Citizenship

[2007] FCA 255

FEDERAL COURT OF AUSTRALIA

SZJGT v Minister for Immigration & Citizenship [2007] FCA 255

MIGRATION – consideration of an application for leave to appeal from a decision of the Federal Magistrates Court

Decision

Application is dismissed with costs.

Migration Act 1958 (Cth)
Federal Magistrate Court Rules, rule 44.12

Decor Corp Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397
Hall v Nominal Defendant (1966) 117 CLR 423.

SZJGT v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2373 OF 2006

GREENWOOD J
1 MARCH 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD2373 OF 2006

BETWEEN:	SZJGT Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
AND	REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GREENWOOD J
DATE OF ORDER:	1 MARCH 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The title of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

2.The Refugee Review Tribunal be joined as a second respondent in the application. 

3.The application is dismissed with costs. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	NSD2373 of 2006

BETWEEN:	SZJGT Appellant
AND:	MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
AND	REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	GREENWOOD J
DATE:	1 MARCH 2007
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. I have before me an application for leave to appeal from a decision of Federal Magistrate Smith delivered on 21 November 2006 by which the Federal Magistrate made orders that an application filed in the Federal Magistrates Court by the present applicant be dismissed pursuant to rule 44.12 of the Federal Magistrates Court Rules on the ground that the application did not raise an arguable case for the relief claimed. His Honour also made an order that the applicant pay the first respondent's costs in the sum of $2,500.

2. The application before Federal Magistrate Smith was an application filed on 29 August 2006 which sought an order that the respondents show cause why a remedy should not be granted under s 476 of the Migration Act 1958 (Cth) in respect of a decision of the Refugee Review Tribunal dated 24 August 1998 and handed down on 25 August 1998. The Tribunal affirmed a decision of the Minister's delegate dated 26 September 1997 which refused the grant of a protection visa to the applicant.

3. In support of the present application, the applicant has filed an affidavit which reflects these contentions:

   ‘1.On 11 June 1997 I lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (“the Act”).

   On 26 September 1997 a delegate of Minister for Immigration and Multicultural Affairs refused to grant a protection visa and on 16 October 1997 I sought review that decision.  On 24 August 1998 the Tribunal affirms the decision not to grant a protection visa to me. 

   I haven't received the decision of the Tribunal on 24 August 1998 until August 2006. I filed the application to the FMC for review that RRT decision and I applied for an order that the time for making the application be extended under section 477 of the Migration Act 1958.

   Under the Migration Act 1958 the decision to refuse to grant the protection visa is known as a "privative clause decision" pursuant to section 474 of the Act. However, the High Court of Australia has held that such a decision can be reviewed.

   The Federal Magistrate Smith shouldn't [have] have dismissed my application for review [of] that RRT decision under rule 44.12 on the ground that it does raise an arguable case for my claim.’

4. The affidavit attaches a notice of appeal and in the notice of appeal the applicant asserts these grounds of proposed appeal:

   ‘A.  The judgment of Judge Smith FM rely on the respondent filed the submission under section 477 of Act.  The application is dismissed under rule 44.12 on the ground that it does not raise an arguable case for the relief claimed. 

   B.  In any event the important issue for the court is whether the Tribunal failed to take into account relevant material supplied by the applicant.  If it did whether this would amount to an error or jurisdictional error on the part of the Tribunal’.

5. It is clear that the judgment of the Federal Magistrate is an interlocutory judgment and thus the obligation cast upon the applicant for leave to appeal is to demonstrate that in the circumstances, the decision of Federal Magistrate Smith is attended by ‘sufficient doubt to warrant its being reconsidered by the Full Court’.  The applicant must then further demonstrate whether substantial injustice would result if leave were refused supposing the decision to be wrong.  Those principles derive from Decor Corp Pty Ltd v Dart Industries Inc. (1991) 33 FCR 397 and are consistent with the principles in Hall v Nominal Defendant (1966) 117 CLR 423.

6. In dealing with the application before Federal Magistrate Smith, his Honour turned to the requirements of rule 44.12(1) of the Federal Magistrates Court Rules. That rule provides, relevantly, that at a hearing of an application of the kind made by the applicant for an order to show cause, the court may - if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application. Federal Magistrate Smith concluded that the application did not raise an arguable case for the relief claimed and accordingly dismissed the application.

7. In doing so, his Honour considered a range of matters put by the applicant concerning the criticism of the decision of the Tribunal.  At paragraphs 10, 11, 12, 13 and 14, his Honour considered the analysis by the Tribunal of the various claims of the applicant and particularly the foundation upon which the Tribunal reached the conclusion that it could not accept the claims of the applicant and was thus unable to be affirmatively satisfied that the applicant held a well-founded fear of persecution for a Convention reason.

8. Nothing in the material filed by the applicant in support of the present application, nor any matter identified in the notice of appeal, demonstrates an error or ‘sufficient doubt’ as to the decision to warrant the matter being reconsidered by a Full Court.  Nor does the material demonstrate whether substantial injustice would result if leave were refused.  However, fundamentally the difficulty with this application is that the applicant has simply failed to demonstrate any error on the part of the Federal Magistrate by reference to any material he has put before the court.

9. The applicant appeared today in person, unrepresented, but with the assistance of an interpreter.  I invited the applicant to put to me any matter that may support the application.  The applicant says that these matters occurred some time ago and he is not now able to remember the facts or the matter.  It is clear from the affidavit I have read and the material filed by the applicant that some person has assisted the applicant in the formulation of this material.  However, the material simply does not establish any question of ‘sufficiency of doubt’ about the Federal Magistrate's decision and even with the assistance of the interpreter, the applicant is not able to demonstrate to me why the Federal Magistrate's decision in determining that no arguable case had been raised, is wrong. 

10. Accordingly, the application must necessarily be dismissed. 

11. There is a procedural matter that needs to be addressed in terms of the application.  The respondent has sought a direction that the title of the respondent be altered to ‘Minister for Immigration and Citizenship’ and I make that direction.  I also direct that the Refugee Review Tribunal be joined as a second respondent for the purposes of the dismissal order.  I also order that the applicant pay the respondents’ costs of and incidental to the application.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

Associate:

Dated:        1 March 2007

Solicitor for the Appellant	Appellant – Self Represented
Solicitor for the First Respondent:	Clayton Utz Lawyers
Date of Hearing:	1 March 2007
Date of Judgment:	1 March 2007