SZMBH v Minister for Immigration and Citizenship

[2008] FCA 1242

FEDERAL COURT OF AUSTRALIA

SZMBH v Minister for Immigration & Citizenship [2008] FCA 1242

Federal Magistrates Court Rules 2001 (Cth)

Décor Corporation v Dart Industries (1991) 33 FCR 397, applied

SZMBH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 758 OF 2008

MARSHALL J
14 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 758 OF 2008

BETWEEN:

SZMBH
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	14 AUGUST 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 $800.

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 758 OF 2008

BETWEEN:

SZMBH
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	14 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applies for leave to appeal from a judgment of the Federal Magistrates Court which dismissed his application for judicial review of a decision of the Refugee Review Tribunal.

2. Leave to appeal is required because the judgment below is interlocutory. The applicant’s application was rejected as disclosing no arguable case pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Leave to appeal will only be granted where two criteria are satisfied. The first is that, in all the circumstances, the judgment below is attended with sufficient doubt to warrant it being reconsidered on appeal. The second is whether substantial injustice would result if leave were refused, supposing the first instance decision was wrong: see Décor Corporation v Dart Industries (1991) 33 FCR 397.

3. The applicant is a citizen of India. He said that his father financed his travel to Australia by borrowing a large amount of money on the security of his father’s house. He said he could be in some danger if he returned to India without having earned money to repay his father and that his family may abandon him.

4. The Tribunal found no connection between the applicant’s concerns and persecution of a kind referred to in the Refugees Convention. It also considered that the applicant would not face a real chance of persecution as a result of his involvement in a single protest against the government.

5. The draft notice of appeal prepared by the applicant does not refer to any specific error in the reasons of the Court below or identify any jurisdictional error committed by the Tribunal. Indeed the applicant this morning conceded that the Tribunal had not made a legal error.

6. Leave to appeal is refused. The decision below is not attended with any doubt and no substantial injustice ensues as a result of the refusal to grant leave. The applicant should pay the first respondent’s 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:        14 August 2008

The Applicant appeared in person.
Counsel for the First Respondent:	Ms B Anniwell for Australian Government Solicitor.

Date of Hearing:	14 August 2008
Date of Judgment:	14 August 2008