SZCNF v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 On 10 January 2005 the applicant filed a notice of appeal from the judgment of the Federal Magistrate given on 7 December 2004. The Federal Magistrate summarily dismissed the applicant's application for review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 17 December 2003 which had earlier upheld the Minister's delegate's decision to refuse to the applicant a protection (Class XA) visa. The ground for that summary dismissal was the applicant's failure to comply with the Court's order to file an amended application articulating the grounds upon which relief was being sought. A judgment to that effect is interlocutory in nature, because it does not finally determine the legal rights of the parties: Re Luck (2003) 203 ALR 1. Hence the applicant was required to seek leave to appeal from the Federal Magistrate's decision (Federal Court of Australia Act 1976 (Cth) s 24(1A)). Counsel for the Minister relied on a decision of a single judge of this Court for the principle that Order 52 r 10(2)(b) does not apply to applications for leave to appeal from judgments of the Federal Magistrates Court: SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543. That rule provides that an application for leave to appeal must be made within seven days and is expressed to apply to 'an interlocutory judgment of this Court'; no reference there appears to judgments of the Federal Magistrates Court. Since the applicant has not filed an application for leave to appeal, the Minister has filed a notice of objection to competency. However I will assume that the originating process filed by the applicant on 10 January 2005 is intended to constitute such an application, and I will determine the proceeding on that basis. 2 In his written submissions, counsel for the Minister observed that the Federal Magistrate's decision to summarily dismiss the application was discretionary in nature. Counsel relied upon House v The King (1936) 55 CLR 499, which stands for the proposition that a Court will not set aside a decision that is based on the exercise of a discretion unless the Court is persuaded that the decision stands outside the limits of a sound discretionary judgment. Counsel also submitted that the Federal Magistrates decision was not attended with sufficient doubt, so as to satisfy the considerations identified by the Full Federal Court in Décor Corp Pty Ltd v Dart Industries (1991) 33 FCR 397. 3 The applicant provided only two 'grounds' for his purported appeal, which I now reproduce (read literally): '(1) I meet the refugee criteria; (2) I face a risk of being jailed if I return to my original country - P R China.' Absent some additional factual material, those grounds are the same as those iterated before the Federal Magistrates Court. 4 The Federal Magistrate found that the application was wholly without merit, and that it could not succeed in its current form. The Federal Magistrate also considered the Tribunal's reasons for decision, and found that the Tribunal member had discharged his responsibility correctly and within his powers under the Act. Having read the Tribunal's decision, I would conclude that the Tribunal made factual findings that were reasonably open to it on the material placed before it. The Tribunal considered the applicant's claims that he had a well-founded fear of persecution on political grounds arising out of his alleged involvement in the activities of the China United Alliance, and found the claims were improbable. The Tribunal member had the advantage of significant oral evidence provided by the applicant, and its problems and difficulties with the veracity and substance otherwise comprised within the applicant's account were well documented in its reasons for decision. It is appropriate to bear in mind in that regard the dictum of McHugh J in Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67], namely that 'a finding on credibility … is the function of the primary decision-maker par excellence'. 5 In those circumstances I would adopt the submissions of counsel for the Minister, insofar as they relate to the applicant's contentions and claims, and I dismiss the application for leave to appeal. I order the applicant to pay the costs of the Minister fixed in the amount of $2,350. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.