SZQBN v Minister for Immigration and Border Protection

[2015] HCASL 16

SZQBN

v

MINISTER FOR IMMIGRATION AND BORDER PROTECTION & ANOR

[2015] HCASL 16
S210/2014

1. The applicant, a Chinese citizen, seeks special leave to appeal against orders of a single judge of the Federal Court of Australia (Flick J) dismissing the applicant's appeal against orders of a single judge of the Federal Circuit Court of Australia (Judge Raphael).  Judge Raphael dismissed an application for judicial review of the decision of the Refugee Review Tribunal to affirm the decision by a delegate of the first respondent to refuse to grant the applicant a Protection (Class XA) visa.

2. Before the Federal Court the applicant argued that the Federal Circuit Court had erred in not finding that the Tribunal's decision was flawed on the basis that it failed to provide to him "information" as required by s 424A of the Migration Act 1958 (Cth) ("the Act"), that information being the fact that a letter containing his personal details had been sent to a third party and that there was a case note on the relevant Tribunal file recording the incident. He also argued that the Federal Circuit Court erred in not finding that, in breach of s 425 of the Act, he had been denied a meaningful opportunity to present his case before the Tribunal because the Tribunal failed to properly have regard to medical evidence which provided a possible explanation for inconsistencies in his evidence. The applicant also sought to raise for the first time an additional argument that the Tribunal had failed to deal with the applicant's claim to fear persecution because of an asserted acknowledgment by Australia that he has a Taiwanese passport.

3. The Federal Court rejected both arguments that the Federal Circuit Court had erred, finding that the applicant's personal information was not the kind of "information" referred to in s 424A and that the Tribunal had taken the medical evidence into account, although it ascribed little weight to it. Further, there was no other foundation for the conclusion that the applicant's mental state prevented him from meaningfully participating in the Tribunal hearing. The Federal Court also refused to permit the applicant to raise the additional argument because it was unmeritorious.

4. In this Court the applicant seeks to argue that the Federal Court erred by redefining the "information" contained in the letter and failing to have regard to the Tribunal's "mistaken view" of the contents of the letter. He further seeks to argue, in relation to his claim under s 425, that the Federal Court failed to address the Tribunal's failure to accord proper weight to the medical evidence in assessing the applicant's credibility. The applicant also alleges error in the Federal Court's refusal to permit him to raise the additional ground.

5. The applicant's arguments, although finely crafted, do not identify any question of principle but turn rather on the characterisation of the facts of the particular case.  The applicant already having had the benefit of two tiers of judicial consideration of those facts, it is not in the interests of justice that there be a third.  The application is dismissed.

6. Pursuant to r 41.11.1, we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

V.M. Bell
5 March 2015 S.J. Gageler