FEDERAL COURT OF AUSTRALIA

SZNRX v Minister for Immigration & Citizenship [2010] FCA 82

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellants pay the first respondent’s costs.

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an appeal from the Federal Magistrates Court (Emmett FM) ([2009] FMCA 1021) dismissing an application for review of a decision of the second respondent (‘the Tribunal’) to affirm a decision of a delegate of the first respondent (‘the Minister’) refusing to grant the appellants protection (Class XA) visas.

2                     The notice of appeal raises one ground.  The appellants claim that the Tribunal ought to have given the appellants the benefit of the doubt in circumstances where the appellants’ claims are plausible.  No error is identified with respect to her Honour’s judgment below.

3                     The ground raised by the appellants on appeal raises a complaint in respect of the decision of the Tribunal that was not raised before the court below.  The appellants require leave to raise that ground before this Court.

4                     The Minister opposes the granting of such leave, on the basis that the ground is without merit and misunderstands the nature of the Tribunal’s review pursuant to the terms of the Migration Act 1958 (Cth) (‘the Act’).  In particular, the Minister submitted:

1.                  Pursuant to s 415 of the Act, for the purpose of the review, the Tribunal stands in the shoes of the primary decision-maker (that is, the Minister’s delegate), and may exercise all the powers and discretions that are conferred by the Act on the delegate.

2.                  Relevantly, the delegate (and thus the Tribunal) is bound by s 65 of the Act to grant a protection visa if satisfied that the applicant is a person to whom protection obligations are owed.  In the absence of a positive finding of satisfaction, the section requires the delegate (and thus the Tribunal) to reject the application: Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [16] – [19] per Black CJ, Sundberg and Bennett JJ, citing, in turn, Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.

5                     Consequently, the Minister submitted that any allegation that the Tribunal ought to have given the appellants the ‘benefit of the doubt’ is contrary to the requirements placed on the Tribunal by s 65: SZHIS v Minister for Immigration & Multicultural Affairs [2006] FCA 1641 at [10] – [11] per Jacobson J.  See also SZLFS v Minister for Immigration & Citizenship [2009] FCA 75 at [23] per Collier J.  The Tribunal was not satisfied that the appellants were persons to whom Australia owed protection obligations for the reasons set out in its decision.  Consequently, it was required by s 65 to refuse to grant the appellants protection visas.  In those circumstances there can be no jurisdictional error in its failure to afford the appellants the benefit of the doubt, even if any such doubt were demonstrated.

6                     I agree with these submissions.  Even if I was to grant leave to allow the appellants to rely on this new and only ground of appeal, the appeal must fail because the ground seeks to  engage the Court in impermissible review of the merits of the Tribunal’s decision.

Conclusion

7                     No appellable error by her Honour has been identified nor any jurisdictional error by the Tribunal.  The appeal must be dismissed, with costs.

Associate:

Dated:         17 February 2010