SZMPK v Minister for Immigration and Citizenship

[2009] FCA 136

FEDERAL COURT OF AUSTRALIA

SZMPK v Minister for Immigration and Citizenship [2009] FCA 136

SZMPK and SZMPL v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1850 of 2008

SIOPIS J
19 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1850 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMPK
First Appellant

SZMPL
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE OF ORDER:	19 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellants are to pay the first respondent’s costs, fixed in the sum of $2,534.00.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1850 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMPK
First Appellant

SZMPL
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SIOPIS J
DATE:	19 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the judgment of a Federal Magistrate which declined to issue orders for judicial review in respect of a decision of the Refugee Review Tribunal (the Tribunal).

2. There are two grounds on which I propose to dismiss the appeal.

3. It is now 10.50 am and the appellants have not appeared.  In the circumstances, the Court has power under s 25(2B)(bb)(ii) of the Federal Court Act 1976 (Cth) to make an order dismissing the appeal.  I will make an order dismissing the appeal on that basis.

4. I also intend to make an order dismissing the appeal on the merits.

5. The notice of appeal raises three specific grounds of appeal:

   1.Refugee Review Tribunal had bias against me and did not make fair decision for my application.

   2.At the hearing of the Federal Magistrates Court, the Judge did not consider my application with fairness.  The Judge refused my application on my hearing date.  It is not fair.

   3.Both RRT and Judge of the Federal Magistrates Court failed to assess my risk to return to China.  I will be persecuted if I return to China.  I refuse to go back.

6. As to the first ground, there was no complaint before the Federal Magistrate that the Tribunal was biased.  The appellants have not demonstrated any basis on which they should be given leave to raise this as a new ground.  Bias is a serious allegation which must be specifically pleaded and supported.  In this case there is no evidence before the Court which is capable of supporting any allegation of bias, nor is there any other material which has been brought to my attention which is capable of supporting that allegation.

7. As to the more general contention that the Tribunal did not act fairly, the Federal Magistrate considered the question of whether there was a breach of procedural fairness of the provisions of s 424A and s 425 of the Migration Act 1958 (Cth). The Federal Magistrate concluded that there had not been a breach of either of those provisions, or a breach of procedural fairness, and in so doing, in my view, the Federal Magistrate did not err. Accordingly, the first ground of appeal is dismissed.

8. As to the second ground, the appellants rely upon the fact that the Federal Magistrate gave his decision on the same day as hearing the appellants’ argument, to support the contention that the Federal Magistrate had acted unfairly.  The fact that the Federal Magistrate may have given his decision on the same day as the hearing does not indicate, in my view, that the Federal Magistrate did not act fairly or accord the appellants procedural fairness.  The rules of procedural fairness do not require that the decision‑maker reserve his or her decision.

9. As to the third ground, it is unclear whether this was a ground which was raised before the Federal Magistrate, but I take it to be a ground that the Tribunal did not consider the integers of the appellants’ claim.  In my view, it is plain that the Tribunal did consider each of the integers of the claim and gave reasons for dismissing it.

10. Insofar as there is also a complaint that the Federal Magistrate did not enter into the merits of the appellants’ claim to be refugees, that was not an error on behalf of the Federal Magistrate.  The Federal Magistrate has no jurisdiction to consider the merits of the claim.  Accordingly, I dismiss the third ground of appeal.

11. Therefore, the appellants’ appeal is dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

Associate:

Dated:        20 February 2009

Counsel for the First and Second Appellants:	The First and Second Appellants did not appear.
Counsel for the First Respondent:	Mr Y Shariff
Solicitor for the First Respondent:	Clayton Utz

Date of Hearing:	19 February 2009
Date of Judgment:	19 February 2009