FEDERAL COURT OF AUSTRALIA
SZRCI v Minister for Immigration and Citizenship [2012] FCA 965
Citation: SZRCI v Minister for Immigration and Citizenship [2012] FCA 965 Appeal from: SZRCI v Minister for Immigration [2012] FMCA 343 Parties: SZRCI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and RON WITTON IN HIS CAPACITY AS INDEPENDENT MERITS REVIEWER File number: NSD 662 of 2012 Judge: FLICK J Date of judgment: 5 September 2012 Catchwords: MIGRATION – application for protection visa – whether person has well-founded fear of persecution – application of “real chance” test – reference to “real chance” in reasons not necessarily application of incorrect test – no error in Federal Magistrate’s decision
PRACTICE AND PROCEDURE – appeal – amendment of grounds of appeal – failure to amend within 28 days – need for leave – exercise of discretion – prejudice to respondent – amendment allowed in part
ADMINISTRATIVE LAW – procedural fairness – bias – reasonable apprehension of bias – “copying and pasting” reasons from prior decisions – whether “copying and pasting” sufficient – need to assess nature and extent of duplication – whether decision-maker has failed to consider the facts of a particular claim
Legislation: Federal Court Rules 2011 (Cth) r 36.10
Federal Court Rules (Cth) O 52 r 21
Migration Act 1958 (Cth) s 36Cases cited: Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29, 216 ALR 1, applied
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, applied
Food Channel Network Pty Ltd v Television Food Network GP [2010] FCAFC 58, 185 FCR 9, cited
Minister for Immigration and Citizenship v SZQHH [2012] FCAFC 45, 200 FCR 223, considered
Minister for Immigration and Citizenship v Wu Shan Liang (1996) 185 CLR 259, cited
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, applied
NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134, cited
Soliman v University of Technology, Sydney [2009] FCAFC 159, referred to
SZMTJ v Minister for Immigration and Citizenship (No 2) [2009] FCA 486, 109 ALD 242, cited
SZKMS v Minister for Immigration and Citizenship [2008] FCA 499, cited
SZMKK v Minister for Immigration and Citizenship [2010] FCA 436 at [25], 114 ALD 634, cited
SZOMU v Minister for Immigration and Citizenship [2011] FCA 140, 119 ALD 556, cited
SZQGN v Minister for Immigration and Citizenship [2012] FCA 436, 127 ALD 299, cited
SZRCI v Minister for Immigration [2012] FMCA 343, referred to
University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481, applied
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158, referred to
WAAOD v Minister for Immigration and Citizenship [2011] FCA 1044, 123 ALD 69, citedDate of hearing: 13 August 2012 Place: Sydney (via video link to Melbourne) Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 55 Counsel for the…
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Details
- AGLC
- SZRCI v Minister for Immigration and Citizenship [2012] FCA 965
- Case
- [2012] FCA 965
- Decision Date
CaseChat Overview and Summary
The applicant, SZRCI, appealed a decision of the Federal Circuit Court of Australia (Federal Magistrate) concerning the refusal of their application for a protection visa. The Federal Magistrate had concluded that the applicant did not have a well-founded fear of persecution, and thus did not meet the criteria for a protection visa. The applicant argued that the Federal Magistrate had misapplied the "real chance" test and had not given proper consideration to the evidence presented.
The court was required to decide whether the Federal Magistrate had correctly applied the "real chance" test in assessing the applicant's fear of persecution, and whether the "copying and pasting" of reasons from prior decisions constituted a failure of procedural fairness. The court also had to determine whether the applicant's amendment of the grounds of appeal, which was filed outside the 28-day period, should be allowed.
The court found that there was no error in the Federal Magistrate's application of the "real chance" test, as the reference to the term in the reasons did not necessarily mean that the incorrect test had been applied. The court also held that the "copying and pasting" of reasons from prior decisions did not necessarily constitute a failure of procedural fairness, as it was necessary to assess the nature and extent of the duplication. The court exercised its discretion to allow the applicant's amendment of the grounds of appeal in part, but not in relation to the proposed Ground 2.
The court ordered the parties to bring in Short Minutes of Order giving effect to these reasons on or before 11 September 2012. The court also noted that no order as to costs should be made at this stage, but reserved the question of costs until the final hearing.
The court was required to decide whether the Federal Magistrate had correctly applied the "real chance" test in assessing the applicant's fear of persecution, and whether the "copying and pasting" of reasons from prior decisions constituted a failure of procedural fairness. The court also had to determine whether the applicant's amendment of the grounds of appeal, which was filed outside the 28-day period, should be allowed.
The court found that there was no error in the Federal Magistrate's application of the "real chance" test, as the reference to the term in the reasons did not necessarily mean that the incorrect test had been applied. The court also held that the "copying and pasting" of reasons from prior decisions did not necessarily constitute a failure of procedural fairness, as it was necessary to assess the nature and extent of the duplication. The court exercised its discretion to allow the applicant's amendment of the grounds of appeal in part, but not in relation to the proposed Ground 2.
The court ordered the parties to bring in Short Minutes of Order giving effect to these reasons on or before 11 September 2012. The court also noted that no order as to costs should be made at this stage, but reserved the question of costs until the final hearing.
Orders
Orders of the court
1. The parties are to bring in Short Minutes of Order giving effect to these reasons on or before 11 September 2012.
Note: Entry of orders is dealt with in r 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
Ground 3 is thus rejected. CONCLUSIONS Leave is granted to amend the Notice of Appeal to raise Ground 1 as set forth in the Interlocutory Application. Ground 3 as set forth in the proposed Amended Notice of Appeal is dismissed. The parties are to bring in Short Minutes of Order in respect to the granting of leave to raise proposed Grounds 1 and 3, the refusal of leave to raise proposed Ground 2, the dismissal of Ground 3 and to the further conduct of the appeal. Orders disposing of the appeal will be made once argument has been heard in relation to Ground 1. It is presently contemplated that there should be no order as to costs in respect to the proceeding to date. Both parties have had mixed success thus far. It may be preferable, however, to reserve the question of costs until the final hearing.THE ORDERS OF THE COURT ARE:1.The parties are to bring in Short Minutes of Order giving effect to these reasons on or before 11 September 2012.
Ratio Decidendi
Legal Principle Established
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