SZKMP v Minister for Immigration and Citizenship

[2008] HCASL 187

SZKMP
v
MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR
[2008] HCASL 187
S552/2007

1. The applicant is a national of India who claims to fear persecution in that country by reason of his membership of a particular social group and political opinion.  On 22 March 2007, the Refugee Review Tribunal affirmed the decision of a delegate of the respondent Minister to refuse his application for a protection visa.  The Tribunal found that the applicant had plagiarised information to support his claims, and that the claims themselves were implausible and unconvincing.  As a result, the Tribunal was not satisfied that the applicant faced a real chance of persecution in India.  

2. An application for an order to show cause why a remedy should not be granted under s 476 of the Migration Act 1958 (Cth) in respect of the Tribunal’s decision was heard by Driver FM on 8 June 2007. His Honour found no arguable case of jurisdictional error and dismissed the application accordingly pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). The dismissal of an application pursuant to that rule is expressly stated to be interlocutory (r 44.12(2)). The consequence was that an appeal to the Federal Court required the leave of that Court (s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (“the Federal Court Act”)).

3. The applicant subsequently filed a notice of appeal in the Federal Court. In his reasons for judgment, Rares J noted that leave to appeal was required and found the purported “appeal” to be baseless. Had his Honour ordered that leave to appeal be refused, an appeal to this Court would have been incompetent (s 33(2) of the Federal Court Act). However, the formal order of the Court was that the appeal be dismissed.

4. We draw attention to the provisions in the rules of the Federal Magistrates Court and the Federal Court Act, which if attended to produce the result that an appeal to the Federal Court lies only with leave and an appeal to this Court would be incompetent.

5. There is no reason to doubt the conclusion of the courts below that the applicant has failed to raise any arguable case of jurisdictional error.  The application for special leave to appeal does not advance any question of law that would justify the intervention of this Court.  There are no prospects of success on any appeal to this Court.  Special leave is refused.

6. Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application for special leave.

W.M.C. Gummow
24 April 2008 S.M. Kiefel