SZLIO v Minister for Immigration

[2007] FMCA 1607

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLIO v MINISTER FOR IMMIGRATION & ANOR [2007] FMCA 1607

MIGRATION – Whether the Tribunal lacked jurisdiction to hear the application – refusal to grant protection visa based on Article 1F of the Refugees Convention.

Migration Act 1958 (Cth), ss.1, 500(1), 500(4), 474, 476

Federal Magistrates Court Rules 2001 (Cth), r.44.05

Applicant: SZLIO

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 2901 of 2007

Judgment of: Turner FM

Hearing date: 20 September 2007

Date of last submission: 20 September 2007

Delivered at: Sydney

Delivered on: 20 September 2007

REPRESENTATION

The Applicant appeared in person via telephone link

Solicitors for the Respondents: Ms D. Watson of Australian Government Solicitor

ORDERS

1. The application is dismissed.

2. The applicant is to pay the costs of the first respondent fixed in the amount of $1,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2901 of 2007

SZLIO

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. This is an application under Rule 44.05 of the Federal Magistrates Court Rules 2001 (Cth) for an order to show cause why a remedy should not be granted under s.476 of the Migration Act 1958 (Cth) (“the Act”) in respect of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 November 2006, which decided that the Tribunal does not have jurisdiction to review the decision refusing to grant the applicant a protection visa, as that decision was based solely on Article 1F of the Refugees Convention.

2. Section 500(1) of the Act provides that applications can be made to the AAT for review of a decision to refuse to grant a protection visa relying on one or more of the following Articles of the Refugee Convention, namely, Article 1F, 32 or 33(2).

3. Section 500(4) provides that decisions referred to in s.1 are not reviewable under Part 5 or 7. Part 5 refers to review of decisions by the Migration Review Tribunal; Part 7 refers to review of decisions by the Refugee Review Tribunal.

4. The Tribunal concluded that the decision sought to be reviewed fell within the ambit of s.500(1)(c). That is correct.

5. The Tribunal then observed that pursuant to s.500(4), decisions relying on Article 1F are not reviewable under Part 7 (i.e. by the RRT). That is correct.

6. The Tribunal made no error; it did not have jurisdiction to review the decision refusing to grant the applicant a protection visa.

Conclusion

1. The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there is no jurisdiction for this Court to interfere.

2. Accordingly, the application is dismissed.

3. Having found that the Tribunal was correct in deciding that it did not have jurisdiction to hear the application for review:

   (a)The Court determines that adjourning the matter for the applicant to file an amended application would not enable the applicant to file arguable grounds for review;

   (b)The Court determines that there is not a serious question to be tried. Therefore, the Court refuses to grant the injunction sought.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Turner FM

Acting Associate: Mary Giang 

Date: 21 September 2007