SZKFR v Minister for Immigration and Citizenship

[2007] FCA 1762

FEDERAL COURT OF AUSTRALIA

SZKFR v Minister for Immigration & Citizenship [2007] FCA 1762

SZKFR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1078 OF 2007

MARSHALL J

23 NOVEMBER 2007

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1078 OF 2007

BETWEEN:

SZKFR
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	23 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed.

2.The applicant pay the first respondent’s costs of the application for leave.

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 1078 OF 2007

BETWEEN:

SZKFR
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	23 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applies for leave to appeal from a judgment of a Federal Magistrate: see SZKFR v Minister for Immigration and Citizenship [2007] FMCA 987. The Federal Magistrate refused to reinstate an application for judicial review of a decision of the Refugee Review Tribunal (Tribunal) after it was dismissed by a Registrar because of the applicant’s failure to appear. The Tribunal had affirmed a decision of a delegate of the first respondent Minister that the applicant was not entitled to a protection visa.

2. The applicant is a citizen of Nepal. She entered Australia on 23 May 2006. On 19 June 2006, she applied for a protection visa. A delegate of the Minister rejected that application on 15 September 2006. On 13 October 2006, the applicant applied to the Tribunal for review of the delegate’s decision. On 5 January 2007, the Tribunal dismissed the applicant’s application to review the delegate’s decision.

3. The applicant claimed to fear persecution, if returned to Nepal, in the reasonably foreseeable future, by reason of her Christianity and her proselytising. The Tribunal considered the applicant to be an unreliable witness. It found that her claims of persecution were inconsistent with independent country information.

4. The applicant raised the following grounds of review before the Court below:

   ·The Tribunal breached natural justice;

   ·The Tribunal made assumptions in relation to the applicant’s Christian activities and did not identify her evangelical activities; and

   ·The Tribunal did not address the issue of lack of protection against those who seek to convert others to Christianity.

5. The applicant failed to appear on the first court return date and the subsequent date before a Registrar on 5 April 2007. The Registrar dismissed the application on 5 April 2007 pursuant to rule 13.03A of the Federal Magistrates Court Rules 2001 (Cth). The applicant applied for reinstatement on 17 May 2007. The Federal Magistrate considered the application for reinstatement together with the substantive application.

6. The Federal Magistrate did not accept that the applicant failed to receive any correspondence from the Minister’s solicitors as she took no steps to provide an alternative address for service.  His Honour found there was insufficient evidence to make a ruling on whether the applicant received proper notification of the time of the first Court date from the Registry.

7. The Federal Magistrate rejected each substantive ground of review. His Honour found no breach of natural justice occurred as the Tribunal complied with ss 425 and 424A of the Migration Act 1958 (Cth). Further, he noted that the Tribunal discussed the applicant’s Christian evangelical activities, and put to her independent country evidence about the issue. His Honour also found the Tribunal addressed the issue of protection, before concluding that the applicant did not face serious harm. He considered that it did not need to separately and specifically address protection for Christian proselytisers.

8. His Honour noted an additional matter raised in the applicant’s affidavit that the Tribunal ignored independent country evidence beneficial to the applicant. His Honour found that the Tribunal did note some independent country evidence which was favourable to the applicant, but said that ultimately it was a question of fact for the Tribunal to determine. The Federal Magistrate also said that the Tribunal was not biased in its use of independent country evidence, and that the Tribunal had considered the applicant’s claims correctly and carefully.

9. His Honour concluded by rejecting the reasons for the applicant’s failure to appear. He found no prospect of success in the substantive application and ruled that it would be futile to set aside the Registrar’s orders.

10. By her draft notice of appeal the applicant states that the Tribunal failed to accord natural justice to her by failing to adequately consider her claims. She also raises other issues that go to the merits of her claims before the Tribunal and do not raise any arguable grounds for jurisdictional error.

11. The applicant’s natural justice ground has no prospect of success. A review of the Tribunal’s decision reveals that it carefully considered her claims and did not neglect or ignore any claim made by her in support of her claim to fear persecution. The proposed appeal has no prospect of success and the judgement below is not attended by sufficient doubt to warrant its reconsideration. No substantial injustice would result from the refusal of leave: see Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398-399. The application for leave to appeal is dismissed, with costs.

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

Associate:

Dated:        23 November 2007

The Applicant appeared for herself.
Counsel for the Respondent:	Ms L. Combes
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	23 November 2007
Date of Judgment:	23 November 2007