SZMNT v Minister for Immigration & Citizenship

Federal Court of Australia|2009-02-24|Before: Edmonds J

Introduction 1 This was an application for leave to appeal from the Federal Magistrates Court of Australia (Smith FM) (SZMNT v Minister for Immigration and Citizenship & Anor [2008] FMCA 1471) dismissing an application for judicial review of a decision of the second respondent ('the Tribunal'), which affirmed a decision of a delegate of the first respondent ('the Minister') not to grant the applicant a protection visa. 2 His Honour dismissed the application under Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 on the ground that the applicant had not raised an arguable case for the relief claimed. In accordance with Rule 44.12(2), that dismissal was interlocutory and an appeal to this Court may only be brought with the leave of the Court (s 24(1A) of the Federal Court of Australia Act 1976 (Cth)).

3 On 11 February 2009 I refused to grant leave with my reasons for such refusal to follow.

TRIBUNAL'S DECISION AND REASONS 6 It is clear from the Tribunal's decision record that it explored with the applicant the claims she had made in writing, during her interviews with the delegate and during the course of the Tribunal hearing. At that hearing, the Tribunal discussed a number of inconsistencies in the applicant's claims and attempted to inquire into her knowledge of Christianity, her attendances at church in Australia and her departure from China. The applicant declined an opportunity to make further responses to the Tribunal after the hearing. 7 In its decision, the Tribunal made reference to inconsistencies in the applicant's evidence regarding where her underground church usually had meetings and who she was with when she was arrested at Easter time in 2006. The Tribunal also noted that the applicant had a limited knowledge about Christian beliefs and the Bible. The Tribunal accepted that the applicant had attended church in Australia and had obtained a Bible. The Tribunal considered that the applicant had done so to strengthen her claims for protection and disregarded that conduct under s 91R(3) of Migration Act 1958 (Cth). 8 The Tribunal rejected the entirety of the applicant's claims about events in China and concluded that she had no adverse profile with the authorities. Accordingly, the Tribunal was satisfied that she would not attempt to involve herself in an underground church in China and did not have a well founded fear of persecution for a Convention related reason.

DRAFT NOTICE OF APPEAL 9 In support of the application for leave to appeal, the applicant filed an affidavit, sworn on 7 November 2008, and a draft notice of appeal containing the following grounds: 1. Refugee Review Tribunal had bias against me and did not make fair decision for my application. 2. I clarify all my points at the hearing of the Federal Magistrates Court, but the judge did not give me a chance to provide more documents. The judge refused my application on my hearing date. It is not fair. I was persecuted in China. I will be put in jail if I return to China. 3. I believe that my application was not considered reasonably by the judge at the Federal Magistrates Court. The judge should give me a time to get RRT hearing to transcript.

Ground 1 10 In relation to the first draft ground of appeal, which contains a claim of bias, this was not a ground relied upon in the court below. Such an allegation is serious and requires evidence, such as a transcript of the Tribunal hearing. As such, the applicant's allegation was made without particulars and nor was it supported by any evidence. I was unable to identify anything in the decision of the Tribunal to suggest bias whether actual or apprehended. In the circumstances, the Minister submitted that such an allegation was without merit and could not be sustained. In addition, the applicant's allegation that the Tribunal did not make a 'fair' decision is un-particularised and in the Minister's submission, did not disclose any error capable of review by this Court. I agree.

Ground 2 11 In the second draft ground of appeal, it is alleged that the Federal Magistrate erred by failing to give the applicant 'a chance to provide more documents'. No details were given of the additional documents that the applicant allegedly sought time to provide. Nor did the applicant explain how these documents could have impugned the Tribunal's decision in circumstances where they were not before it. Nor did the applicant seek to put the documents in question before the Court in these proceedings. The applicant has provided no evidence that she had or has any additional documents in her possession or that she sought further time to submit such documents at the hearing before his Honour below. 12 As noted in his Honour's judgment (at [10]), the applicant was given an opportunity to file an amended application and further evidence, after receiving a bundle of relevant documents and a referral for free legal advice. However, the applicant did not file any additional documents. The Minister submitted that the Federal Magistrate did not err in his approach to this matter. I agree. 13 The Minister submitted that the balance of the applicant's complaints in the second ground were either repetitive of the first ground or invited merits review by re-agitating her claims to be a refugee. Again, I agree.

Ground 3 14 In the third ground of the draft notice of appeal, the applicant appears to allege that the Federal Magistrate did not act reasonably on the basis that he did not allow the applicant further time to submit a transcript of the Tribunal hearing. There is no evidence that the applicant sought further time to provide a transcript of the Tribunal hearing, having not done so in accordance with the timeframe ordered by the court below. That the applicant did not file any evidence in accordance with the Court's orders is noted in the reasons of his Honour (at [10]). The Minister submitted that ground three discloses no appellable error on the part of the Federal Magistrate. Again, I agree.

CONCLUSION 15 In my view, the conclusion of the Federal Magistrate that the applicant failed to raise an arguable case for the relief claimed was correct and is not attended with sufficient doubt to warrant a grant of leave to appeal. 16 In any event, for the reasons already outlined above, the grounds of the draft notice of appeal do not disclose any error in the judgment of the Federal Magistrate. Further, even if the Federal Magistrate's judgment contained an error, the applicant has not identified any jurisdictional error on the part of the Tribunal. Accordingly, no substantial injustice results from the refusal of leave to appeal. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate: Dated: 24 February 2009 Counsel for the Applicant: The applicant appeared in person

Solicitor for the First Respondent: Australian Government Solicitor

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (1)

Cited By (1)