SZLJD v Minister for Immigration and Citizenship

INTRODUCTION 1 This is an application for leave to appeal against the decision of Federal Magistrate Smith delivered on 18 December 2007. In an application of this kind, the applicant is required to show whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered by this Court and whether substantial injustice would result if leave were refused, assuming the decision to be wrong. I consider this test has been met by the applicant in this case and I propose to grant her leave to appeal. 2 At this stage, I merely propose to identify in quite general terms, the aspect of the Federal Magistrate's decision that raises sufficient doubt in my mind to warrant this matter being considered on appeal. I would add that if the Federal Magistrate's decision is wrong, some obvious and significant consequences will be suffered by the applicant, such that she also meets the second leg of the test I have mentioned. I should add that unlike the Federal Magistrate, I have had the benefit of reading a transcript of the hearing before the Refugee Review Tribunal ('the Tribunal') on 3 July 2007.

THE FEDERAL MAGISTRATE'S DECISION 3 Before the Federal Magistrate, the applicant complained, among a number of other things, about the way in which the Tribunal dealt with the evidence relating to her travel from the People's Republic of China ('China') to Hong Kong and relating to the passport and visa she used to travel from Hong Kong to Australia. The applicant complained that the Tribunal had failed to comply with its obligations under s 424A(1) of the Migration Act 1958 (Cth) ('the Act'). The Federal Magistrate dismissed those complaints in paragraphs 11 and 13 of his decision pointing out that whilst he did not have a transcript of the Tribunal hearing before him, it appeared to him that the Tribunal had only relied upon general information and not information specific to the applicant and therefore concluded that there had been no breach of s 424A(1) of the Act. 4 As observed before, I have had the benefit of reading the transcript of the hearing before the Tribunal on 3 July 2007. It is apparent to me from that transcript that the applicant was questioned closely and at length about the issues the applicant raised before the Federal Magistrate including her travels from China to Hong Kong and from Hong Kong to Australia and the passport and visa that she used. More significantly, the Tribunal member indicated a number of times during the hearing that he intended to make further enquiries about these issues and he identified with some precision what those enquiries might entail. 5 It appears from the decision of the Tribunal signed on 16 August 2007, that the Tribunal member relied at least in part upon these issues in making his decision. The doubt in my mind is whether or not the Tribunal complied with the provisions of s 424A(1) and for that matter, s 424(1) of the Act. It is not appropriate that I should go into detail about that doubt at this stage but some aspects of my doubts have been canvassed in discussion with counsel before this ruling. 6 If the Tribunal failed to comply with those sections of the Act, then there is some doubt in my mind as to whether the Federal Magistrate erred in not detecting those breaches (if they occurred). For these reasons, I intend to grant leave to the applicant to appeal the decision of the Federal Magistrate though I should emphasise that I have an open mind on whether or not there has, in fact, been a breach of these sections and I consider it should be determined on full argument at the appeal. I also should make clear that I do not foreclose on any other alleged errors the applicant may wish to argue on appeal, although I have doubts as to whether they constitute jurisdictional error, in relation to the particular matters she raised before me this morning. 7 The order I make is that the applicant be granted leave to appeal and I will reserve the question of costs to be determined on the appeal. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves.