SZKFU v Minister for Immigration and Citizenship

[2008] FCA 740

FEDERAL COURT OF AUSTRALIA

SZKFU v Minister for Immigration and Citizenship [2008] FCA 740

SZKFU v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 334 OF 2008

MARSHALL J
22 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 334 OF 2008

BETWEEN: SZKFU
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	22 MAY 2008
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 to appeal, fixed at $1,200.

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 334 OF 2008

BETWEEN: SZKFU
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	22 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal from an interlocutory judgment of a Federal Magistrate. The Court below dismissed the applicant’s application for judicial review of a decision of the Refugee Review Tribunal as disclosing no arguable case of jurisdictional error. The Tribunal had dismissed an application by the applicant for a review of a decision of a delegate of the first respondent Minister to reject the applicant’s claim for a protection visa.

2. The applicant is a citizen of Malaysia. He claimed to have a well founded fear of persecution if returned to Malaysia in the reasonably foreseeable future on the basis of his Chinese ethnicity. After applying for a review of the delegate’s decision, the Tribunal invited him to appear before it. The applicant did not attend before the Tribunal which dismissed his application, as it was unable to test the applicant’s claims.

3. The Federal Magistrate noted the applicant’s acceptance that his failure to attend the Tribunal hearing was his own fault, given that he had relied on a friend to advise him of any hearing invitations and the need for responses. His Honour found no arguable case for jurisdictional error. That judgment was correct. No arguable case has been advanced by the applicant since the judgment below by way of submission.

4. As the decision below is not attended with sufficient doubt to warrant its reconsideration and no substantial injustice would result if leave were refused, leave to appeal should be refused. It would also be futile to grant leave if, as would occur here, the appeal would be bound to fail.

5. The draft notice of appeal challenges, without any basis for so doing, the Federal Magistrate’s view that the Tribunal met its statutory obligations by inviting the applicant to a hearing. The draft notice also wrongly contends that the applicant was denied natural justice and received a decision from a biased Tribunal, when the Tribunal decided the matter in his absence. It had little alternative but to decide the matter in the applicant’s absence when he did not respond to a hearing invitation. The draft notice of appeal also alleges that the Tribunal failed to consider a claim made to it, without identifying any such claim. It also raises a similar argument concerning the ignoring of relevant material without identifying the material. Finally, it re-states that the Tribunal denied the appellant the opportunity to comment on a matter, without identifying the matter. Each proposed ground is unsupported and unsupportable.

6. The Court will order that the application for leave to appeal is refused, with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:       22 May 2008

The Applicant appeared for himself.
Counsel for the First Respondent:	Ms S Kantaria
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	22 May 2008
Date of Judgment:	22 May 2008