SZTQY v Minister for Immigration and Border Protection
[2014] FCA 1240
•13 November 2014
FEDERAL COURT OF AUSTRALIA
SZTQY v Minister for Immigration and Border Protection [2014] FCA 1240
Citation: SZTQY v Minister for Immigration and Border Protection [2014] FCA 1240 Parties: SZTQY v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL File number: NSD 836 of 2014 Judge: EDMONDS J Date of judgment: 13 November 2014 Catchwords: MIGRATION – appeal from judgment of Federal Circuit Court of Australia – application for leave to appeal – no appealable error to warrant grant of leave Legislation: Federal Court of Australia Act 1975 (Cth) s 24(1A)
Federal Court Rules 2011 r 35.11
Federal Circuit Court Rules 2001 r 44.12Cases cited: Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 cited Date of hearing: 13 November 2014 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 11 Counsel for the Applicant: The applicant appeared in person Solicitor for the Respondents: Ms F Taah of Australian Government Solicitor
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 836 of 2014
BETWEEN: SZTQY
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE OF ORDER:
13 NOVEMBER 2014
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for leave to appeal be dismissed.
2.The applicant pay the first respondent’s costs, as agreed or taxed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 836 of 2014
BETWEEN: SZTQY
ApplicantAND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
EDMONDS J
DATE:
13 NOVEMBER 2014
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application made pursuant to r 35.11 of the Federal Court Rules 2011 seeking leave to appeal from a judgment of the Federal Circuit Court given on 30 July 2014: SZTQY v Minister for Immigration & Anor [2014] FCCA 1690. That judgment dismissed an application for judicial review of a decision of the Refugee Review Tribunal (“Tribunal”) to affirm a decision refusing the applicant a Protection (Class XA) visa.
The application was dismissed pursuant to r 44.12(1)(a) of the Federal Circuit Court Rules 2001. Rule 44.12(2) expressly provides that, to avoid doubt, a dismissal under para (1)(a) is interlocutory. It follows by virtue of s 24(1A) of the Federal Court of Australia Act 1975 (Cth) and r 35.11 of this Court’s rules that the applicant requires leave to appeal from the judgment below.
On 12 August 2014 the applicant filed an application for leave to appeal from the judgment and orders of the primary judge. The draft notice of appeal filed with the applicant’s application contains three grounds:
1. RRT has bias against me, as I was deprived of the benefits of doubts.
2.RRT has denied me procedural fairness by failing to provide adequate reasons for the finding of a fact.
3.RRT unfairly reviewed my case. The Tribunal did not examine the risk of the persecution I will face if return[ed] to China.
Pursuant to the directions made by the Deputy Registrar on 14 August 2014, the applicant was afforded the opportunity to file and serve submissions no later than 10 business days prior to the hearing. No such document has been filed with the Court, nor, I understand, has any such document been served on the first respondent (“Minister”).
On an application for leave to appeal, an applicant is required to establish that the decision in question is attended with sufficient doubt to warrant the grant of leave and that substantial injustice will result from a refusal of leave to appeal. In that regard, I refer to what was said by a Full Court of this Court in Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238, in particular at [26]–[30] and the authorities there referred to.
Leave ought not be granted in circumstances where the proposed appeal would have no prospects, not only because the first limb of the test would not be satisfied, but also because no real injustice can be occasioned by refusing leave to appeal in circumstances where the proposed appeal cannot succeed. For the reasons which follow, I agree with the Minister’s submissions that the judgment below is not attended with sufficient doubt to warrant its consideration on an appeal. The applicant’s grounds do not identify any appealable error in the judgment or order of the court below.
In my view, the primary judge was correct to find no jurisdictional error in the Tribunal’s decision, having considered the grounds raised by the applicant and the terms of the decision more generally. The applicant’s proposed ground 1 – that the Tribunal was biased – was not raised in the proceedings before the primary judge. Moreover, this allegation is unparticularised and there is no evidence before the Court capable of sustaining such an allegation.
The applicant’s complaint of a denial of procedural fairness because the Tribunal failed to provide adequate reasons for its factual findings in proposed ground 2 is factually incorrect, given the contents of the Tribunal’s decision.
Similarly, the applicant’s complaint of unfairness because the Tribunal did not examine the risk of persecution to him in China is without any substance, given the Tribunal’s thorough consideration of his protection claims.
In circumstances where the applicant has not articulated any error in either the judgment of the court below or identified any jurisdictional error in the decision of the Tribunal, the applicant’s application for leave to appeal must be dismissed, because the proposed appeal has no prospects of success.
CONCLUSION
The applicant’s application for leave to 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 Edmonds. Associate:
Dated: 19 November 2014
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