SZFIO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1449 (7 October 2005)

Last Updated: 17 October 2005

FEDERAL COURT OF AUSTRALIA

SZFIO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1449

MIGRATION – application for leave to appeal – no denial of procedural fairness – no failure of Tribunal to consider a claim – specific reference to the departmental file number and to the applicant’s claims in the visa application – SAAP and Al Shamry do not apply



Al Shamry v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 919; (2001) 110 FCR 27
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162

























SZFIO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N1785 OF 2005

BENNETT J
7 OCTOBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1785 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFIO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	BENNETT
DATE OF ORDER:	7 OCTOBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The appeal is dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1785 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFIO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	BENNETT
DATE:	7 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for leave to appeal a decision of Federal Magistrate Scarlett. His Honour summarily dismissed the applicant’s application for review of the Tribunal’s decision of 5 June 2005. In the alternative, Scarlett FM held that the application was not competent because it had been filed out of time.

2 It is worth noting a number of matters about the Tribunal decision. The Tribunal had invited the applicant to attend a hearing before it, having notified him that it was unable to make a decision in his favour on the papers. The applicant, who appears at that time to have been represented by a solicitor, returned the hearing invitation form to the Tribunal indicating that he did not wish to come to attend. The Tribunal proceeded to make a decision.

3 In a submission to the Tribunal, the applicant’s solicitor specifically referred to the departmental file number and to the applicant's claims that had already been made. As there had been no independent claims made to the Tribunal, that letter must have been taken to incorporate into the application to the Tribunal the claims in the applications that had previously been made on the applicant's behalf to the department. In those circumstances, the Tribunal was entitled to rely upon that information, which included the applicant’s visa application. The Tribunal was not required to provide further particulars of that information to the applicant (Al Shamry v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 919; (2001) 110 FCR 27; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24; (2005) 215 ALR 162.

4 Federal Magistrate Scarlett reviewed the decision of the Tribunal and was unable to find any. His Honour concluded that, as the application for review was out of time and as no jurisdictional error had been disclosed in the decision, it was a privative clause decision. Section 477(1A) Migration Act 1958 (Cth) applied. The Federal Magistrate noted that the grounds of error raised by the applicant related to factual findings of the Tribunal which his Honour correctly concluded were not open to him for re-examination.

5 The applicant appears before me in person without an interpreter. He demonstrated that he was fluent in English and able to present his own arguments. He raised two matters before me as a basis for error on the part of the Tribunal. The first was that he said that he was denied procedural fairness. The second was an assertion that the Tribunal did not consider his claims.

6 The first ground seems to be based upon the Tribunal proceeding to hear the matter in his absence without making further inquiries to ascertain the truth or otherwise of the applicant’s claims. The Tribunal was under no obligation to make such inquiries. The Tribunal complied with its statutory obligations in affording the applicant an opportunity for a hearing, which he declined. In those circumstances, there has been no denial of procedural fairness on the part of the Tribunal.

7 As to the second ground, I note from the Tribunal's reasons and from the information that had been placed by the applicant before the Tribunal, that his claims were based upon his involvement with the Jatiya Party in Bangladesh. The Tribunal referred to a number of factual matters in the applicant’s submissions and raised a number of matters about his credibility. The Tribunal concluded that, whatever the previous situation of the Jatiya Party, on the basis of country information that party at the time of the Tribunal’s decision faced ‘an unthreatening situation’, in large part because of the positive attitude towards it by the governing BNP party.

8 The Tribunal also made a number of observations about the applicant’s claims, including his ability to travel to and from Bangladesh. Apart from the Tribunal's conclusion as to the credibility of the applicant’s claims, it came to the conclusion that he had no fear of persecution for the reasons that it gave.

9 Like the Federal Magistrate, I can see no demonstrated error on the part of the Tribunal. The applicant has also been unable to establish any error on the part of the Federal Magistrate. The Federal Magistrate was correct in his conclusion that there was no jurisdictional error. Accordingly s 477(1A) applied and the application was out of time. In those circumstances, I can see no reason to grant the application for leave to appeal from the Federal Magistrate's decision and the application is dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated: 7 October 2005

The applicant appeared in person.

Solicitor for the Respondent:	E. Knight, Australian Government Solicitor
Date of Hearing:	7 October 2005
Date of Judgment:	7 October 2005