FEDERAL COURT OF AUSTRALIA

SZMCS v Minister for Immigration and Citizenship [2008] FCA 1713

MIGRATION - application for a protection visa – leave to appeal

Held: application dismissed

Federal Magistrates Courts Rules 2001 (Cth)

Federal Court of Australia Act 1976 (Cth)

Migration Act 1958 (Cth)

Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397

Sharp v Deputy Commissioner of Taxation (Cth) (1988) 88 ATC 4

SZMCS v Minister for Immigration & Anor [2008] FMCA 931

SZMCS v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1157 OF 2008

JAGOT J

14 NOVEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal is dismissed.

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.

REASONS FOR JUDGMENT

1                     This is an appeal against an order of the Federal Magistrates Court dismissing the appellant’s application for judicial review in connection with refusal of a protection (class XA) visa under s 65 of the Migration Act 1958 (Cth) (SZMCS v Minister for Immigration & Anor [2008] FMCA 931).  Under s 36(2) of the Act the criterion for a protection visa is that the applicant for the visa is (relevantly) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (meaning, in accordance with s 5(1), the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees).  Section 474 of the Migration Act protects “privative clause decisions” (defined to include decisions with respect to protection visas) from challenge other than on the grounds of jurisdictional error. 

2                     The appellant is a citizen of India.  He arrived in Australia on 18 July 2007.  He applied for a protection visa on 27 August 2007.  The first respondent’s delegate refused the application on 23 November 2007.  The appellant applied to the Refugee Review Tribunal for a review on 21 December 2007.  The Tribunal affirmed the decision on 20 February 2008.  The appellant appealed to the Federal Magistrates Court on 4 April 2008. 

3                     In his application the appellant claimed that the Tribunal erred in two respects.  First, the Tribunal erroneously concluded that the appellant could safely return to India as he did not have a well founded fear of persecution for any Convention based reason.  Secondly, the Tribunal misdirected itself when it found that the appellant had not claimed to fear persecution for any other Convention based reason when, according to the appellant, this finding was “completely against” his written claims and evidence during the hearing. 

4                     In his notice of appeal to this Court the appellant claimed that the Federal Magistrates Court failed to take consideration of the fact that the Tribunal’s decision was unjust and was made without taking into account the full gravity of the appellant’s circumstances and the consequences of his claims. 

5                     The primary judge recorded that the first respondent had filed a response to the application asserting that the grounds of appeal to the Federal Magistrates Court involved a “clear attempt at impermissible merits review” and the first respondent opposed all orders sought on the basis that no reasonable cause of action was shown.  Rule 44.12 of the Federal Magistrates Courts Rules 2001 (Cth) relevantly provides as follows:

(1)     At a hearing of an application for an order to show cause, the Court may:

(a)        if it is not satisfied that the application has raised an arguable case for the relief claimed - dismiss the application; or

…

(2)     To avoid doubt, a dismissal under paragraph (1)(a) is interlocutory.

6                     The Federal Magistrates Court dismissed the application under r 44.12(1)(a) on 7 July 2008.  Section 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) vests jurisdiction in this court to hear and determine appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth (other than certain excluded laws, which are not relevant).  Section 24(1A) provides that such an appeal shall not be brought from a judgment that is an interlocutory judgment unless the Court gives leave to appeal. 

7                     The appellant has not sought leave to appeal.  The test for leave is well known.  The first question on a leave application is whether, in all the circumstances, the decision is attended with sufficient doubt to warrant its being reconsidered by the appellate court.  The second is whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397).  These questions “bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another.  Ultimately, a discretion must be exercised on what may be a fine balancing of considerations” (Sharp v Deputy Commissioner of Taxation (Cth) (1988) 88 ATC 4,184 at 4,186).

8                     In the present case the primary judge noted that the appellant maintained the application as filed.  During the hearing the appellant submitted that the Tribunal should have accepted his claims as he was confused when he provided his written information.  The primary judge observed that: - (i) the Tribunal was entitled to take into account inconsistencies in the appellant’s material, (ii) the appellant had not asserted any breach of s 424A of the Migration Act (involving the Tribunal’s obligation to give clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review), and (iii) no such breach was apparent to the primary judge in any event. 

9                     The primary judge considered the course of the hearing before the Tribunal.  The primary judge concluded that the findings made by the Tribunal (namely that, (i) the appellant could safely return to India, (ii) the appellant does not have a well-founded fear of persecution for Convention reasons relating to his religion or politics, and (iii) the appellant had not claimed to fear persecution for any other Convention related reason) were open to it.  In so doing the primary judge said that the appellant’s claims were based wholly on his religion and politics.  As a result the primary judge accepted that the application did not disclose an arguable case of jurisdictional error and none was apparent from his own review of the material.  Accordingly, the primary judge dismissed the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Courts Rules. 

10                  I am satisfied that the decision of the primary judge is not attended by any doubt.  I am confirmed in this opinion by the terms of the appellant’s notice of appeal to this Court (that is, on a ground identified as an alleged failure of the Federal Magistrates Court to take consideration of fact that the Tribunal’s decision was unjust and was made without taking into account the full gravity of the appellant’s circumstances and the consequences of his claims).  Both aspects of this appeal ground relate to the merits of the Tribunal’s decision rather than any alleged jurisdictional error.  Accordingly, the Federal Magistrates Court was correct in concluding that the application disclosed no reasonable cause of action.  In common with the primary judge I have considered the Tribunal’s reasons.  Although (assuming the primary judge’s decision is wrong) the appellant would suffer substantial injustice by reason of the refusal of his protection visa I too am unable to discern any jurisdictional error in the process by or reasons for which the Tribunal reached its decision to affirm the decision of the first respondent’s delegate.  In other words, leaving aside the requirement of leave I can see no basis for upholding the appellant’s appeal.

11                  In these circumstances leave should be refused and the application dismissed.  For the same reasons the appeal should be dismissed.

Associate:

Dated:         14 November 2008