FEDERAL COURT OF AUSTRALIA

SZGWR v Minister for Immigration and Citizenship

[2007] FCA 1306

SZGWR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 665 OF 2007

RARES J

31 JULY 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The Refugee Review Tribunal be added as the second respondent to the application.

2.                  It be noted that the Tribunal, by its solicitor, undertakes to file an appearance submitting to any order the Court might make except an order as to costs.

3.                  The time in which the application for leave to appeal may be made is extended to 17 April 2007.

4.                  The application for leave to appeal is dismissed.

5.                  The applicant pay the first respondent’s costs fixed in the sum of $1,500.

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

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a decision of the Federal Magistrates Court:  SZGWR v Minister for Immigration [2007] FMCA 369.  The applicant is a citizen of the People’s Republic of China who arrived in Australia in October 1995.  In March 1997, a delegate of the Minister refused to grant a protection visa.  In April 1997, the applicant applied to the Refugee Review Tribunal for a review of that decision.

2                     After three separate occasions of giving oral evidence, the last of which was in September 1999, and a number of exchanges of correspondence between those representing the applicant and the Tribunal, the Tribunal gave a decision affirming the delegate’s decision on 20 December 2002.  In August 2005, the applicant filed in the Federal Magistrates Court an application for constitutional relief against the decision of the Tribunal, given almost three years before.  In early 2007, the applicant, represented by a firm of solicitors, filed an amended application in that Court which raised two grounds of jurisdictional error in the Tribunal’s decision.  The first ground was that the Tribunal in coming to the ultimate decision to reject the applicant’s claim for a protection visa had referred to, and placed some reliance upon, the fact of a third party’s application.  The second ground was that the tribunal had asked him questions about that other person’s application without giving him a copy of the application or otherwise complying with ss 424A and 476 of the Migration Act 1958 (Cth).

3                     His Honour rejected those grounds on the basis of the Tribunal’s statement that it had carefully considered the material and situation of the two applications and that while both men had come from the same province, used the same go-between and same address for mail purposes in relation to their application for review, the Tribunal considered the two applications to be separate and unrelated in regard to the situation in China and drew no adverse inferences because of that situation.  His Honour said that, therefore, it followed that s 424A(1) was not enlivened because the material in relation to the other applicant was not the reason or part of the reason why the Tribunal found against the present applicant’s claim for a protection visa.

4                     His Honour also relied on what Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ had said in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88 at 94 [12] as authority for the proposition that where the Tribunal said it did not act on information there was no reason to doubt such a statement or to go behind it in the ordinary case.  I am satisfied that the trial judge’s decision was correct on this ground for the reasons he gave and that there would be no prospect of it being overturned were leave to appeal granted. 

5                     The second basis which was argued before his Honour was that information in a Department of Foreign Affairs and Trade report concerning a Chinese dissident was used by the Tribunal to form a view as to the way in which Chinese authorities would behave towards people who had participated in the protests relating to the massacre on 4 June 1989 in Tiananmen Square, Beijing.  His Honour held that this material fell within the exception in s 424A(3)(a) and I agree.

6                     It follows that on neither basis argued before his Honour was there any prospect an appeal succeeding were leave granted.

7                     The applicant has also sought to rely upon his own draft notice of appeal in support of his application for leave.  The Minister argued that the applicant should not be allowed to rely on different grounds to those presented by an experienced solicitor acting on his behalf in the Federal Magistrates Court.  I agree with that view but I also consider that none of the proposed grounds of appeal raises any matter which has a reasonable prospect of success were leave to appeal granted.

8                     Each of the three stated grounds which the applicant has raised is a general and unparticularised assertion of an ultimate legal conclusion.  The first new ground simply asserts that there was an error of law made by the Tribunal which amounted to a jurisdictional error, without identifying any error.  Accordingly, it is without content.  The second ground complains that the learned Federal Magistrate failed to consider whether the Tribunal had constructively failed to exercise its jurisdiction and had applied an incorrect test of persecution for convention purposes.  It is hardly surprising that his Honour failed to consider a ground that was not argued by the applicant’s solicitor and this ground equally has no substance.  The third ground is merely a recitation of the circumstances in which the Court may find a jurisdictional error without identifying that, in fact, the Tribunal fell into any such error.  Like the first proposed new ground, it lacks any content. 

9                     I am satisfied that none of the proposed grounds would enjoy any prospect of success were leave to appeal granted.

10                  Last, there is an unexplained delay of over two and a half years from the date on which the Tribunal decided to affirm the delegate’s decision to refuse the applicant a protection visa and the date on which he first made an application to the Federal Magistrates Court.  His Honour did not consider it necessary to exercise the discretion which the existence of that period of delay enlivened.  I consider that the existence of that delay is another factor which induces me to believe that if leave to appeal were granted, there are no reasonable prospects that an appeal would succeed, because there was no material before his Honour to explain that very substantial delay.

11                  For those reasons, I am of opinion that the application should be dismissed.  

Associate:

Dated:         22 August  2007