SZLUV v Minister for Immigration and Citizenship

[2008] FCA 620

FEDERAL COURT OF AUSTRALIA

SZLUV v Minister for Immigration and Citizenship [2008] FCA 620

Federal Court of Australia Act 1976 (Cth)
Migration Act 1958 (Cth)
Federal Magistrate Court Rules 2001

SYWB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 402
Re Luck (2003) 203 ALR 1
Décor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397
SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190

SZLUV v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 218 OF 2008

LOGAN J

5 MAY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 218 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLUV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	5 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The notice of appeal filed on 21 February 2008 is to be treated as if it were an application for leave to appeal from the Federal Magistrates Court, on the grounds as foreshadowed in that notice of appeal.

2.The application for leave to appeal is dismissed.

3.The Applicant is to pay the First Respondent’s costs of and incidental to the hearing of the application to be taxed.

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 218 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLUV
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	LOGAN J
DATE:	5 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This case comes to the Court from the Federal Magistrates Court. Whether or not one refers to the Appellant as the Applicant strictly involves a question of practice and procedure. That question of practice and procedure is whether, strictly speaking, a challenge to the decision of the Federal Magistrates Court, in the circumstances of this case, may only be instituted with the leave of the Court, as s 24(1)A of the Federal Court of Australia Act 1976 (Cth) would require. For convenience only, I shall use the term “the Appellant” in my reasons.

2. The question as to whether leave to appeal is required arises in this way and against this background.  The Appellant is a citizen of the People’s Republic of China.  He came to Australia on 7 April 2007.  The following month, he lodged an application for a protection visa with the Department of Immigration and Citizenship.  On 2 August 2007, a delegate of the Minister responsible for that department refused the application for a protection visa.  That decision was in turn the subject of an application for review by the Refugee Review Tribunal.  The Tribunal decided on 20 November 2007, for reasons which it then published, to affirm the decision made by the delegate not to grant the applicant a protection visa.

3. The Tribunal’s decision was the subject of an application for judicial review to the Federal Magistrates Court.  On 1 February 2008, that Court dismissed the judicial review application.  A study of the Federal Magistrate’s reasons discloses that the dismissal occurred as the result of what is termed in the practice and procedure of the Federal Magistrates Court, a “show cause application”.  Provision is made for such an application to be heard by r 44.12 of the Federal Magistrate Court Rules 2001.

4. Materially, that rule provides that at a hearing of an application 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. The rule further provides that “to avoid doubt”, a dismissal of the kind which I have mentioned is “interlocutory”. That statement in the rule may not necessarily avoid doubt because a statement in the rules of the Federal Magistrates Court is not conclusive as to the meaning of “interlocutory judgment”, in s 24(1A) of the Federal Court of Australia Act 1976.

5. In SYWB v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 402, 18 April 2006, Lander J had occasion to review authorities bearing upon the question as to whether when a lower court had dismissed a proceeding summarily, leave to appeal to this Court from such a decision was required. His Honour noted that the authorities bearing on that question were not all one way. In the result, and particularly influenced by the High Court’s decision in Re Luck (2003) 203 ALR 1, his Honour was disposed to proceed on the basis that leave to appeal was required. Essentially, for the reasons that Lander J gave, I am also disposed to proceed on that basis.

6. That means that I should determine whether or not to grant leave to appeal having regard to what was said by the Full Court in Decor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397, at pages 398 to 400. In any event, though, it is not immaterial to have regard to the merits of the proposed appeal. As disclosed by the notice of appeal, it is proposed by the Appellant to challenge the decision of the Federal Magistrate on these bases:

   1.that the Federal Magistrate erred in not concluding that the Tribunal had failed to comply with its obligations under s 424A(1) of the Migration Act; 

   2.that the Federal Magistrate had failed to conclude that the Tribunal had assessed the Appellant’s credibility incorrectly;  and

   3.that the Federal Magistrate had erred in not concluding that the Tribunal’s decision was affected by a reasonable apprehension of bias. 

   The Federal Magistrate found no merit in any of these grounds. 

7. I am not persuaded that the Federal Magistrate fell into error in so concluding for these reasons. 

8. A study of the Tribunal’s reasons discloses that the Tribunal acted on country information of a general nature in relation to the practices of the Chinese authorities in relation to border and immigration control and also upon the information contained in the Appellant’s passport, which he supplied to the Tribunal. Information of these kinds falls within the exception in s 424A(3) of the Migration Act 1958. The Tribunal’s views as to the credibility of an Applicant before it do not constitute “information” for the purposes of s 424A of the Migration Act.  See: SZBYR v Minister for Immigration and Citizenship (2007) 81 ALJR 1190, at para 18.

9. It is evident from the Tribunal’s reasons that, having regard to inconsistencies as between written and oral evidence from the Appellant in relation to the activities which grounded his claim for a protection visa, the Tribunal formed an adverse view about his credibility.  That in turn led to a failure on the part of the Tribunal to be satisfied that he met the criteria for the grant of a protection visa.  Like the Federal Magistrate, my view is that these findings were open and in any event questions of credibility are par excellence matters for the Tribunal’s decision.  That the Tribunal chose not to accept the Appellant’s version of events upon which his protection visa claim was founded does not give rise to an apprehension of bias on the part of the Tribunal.  There is just no evidence at all which would raise an apprehended bias claim.  The Federal Magistrate rightly concluded that. 

10. It follows from the above that even were I to be incorrect in my characterisation of this case as one which required a grant of leave to appeal then I would not in any event be disposed to allow an appeal.  It necessarily follows that I am not disposed to grant leave to appeal.  The Minister quite properly invited me to treat the notice of appeal as if it were an application for leave to appeal.  I do so and I dismiss that application.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

Associate:

Dated:        12 May 2008

Counsel for the Appellant:	The Appellant appeared in person
Solicitor for the Respondents:	DLA Phillips Fox

Date of Hearing:	5 May 2008
Date of Judgment:	5 May 2008