SZBZW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 72 (8 February 2005)

SZBZW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 72

SZBZW and SZBZX v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1532 of 2004

BRANSON J
8 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1532 of 2004

BETWEEN:	SZBZW FIRST APPELLANT SZBZX SECOND APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	8 FEBRUARY 2005
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1532 of 2004

BETWEEN:	SZBZW FIRST APPELLANT SZBZX SECOND APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	8 FEBRUARY 2005
PLACE:	SYDNEY

1 On 8 February 2005 I ordered that this appeal be dismissed with costs. These are my reasons for making those orders.

2 On 21 October 2004 the appellants instituted an appeal against a judgment of the Federal Magistrates Court dated 1 October 2004. By that judgment the appellants’ application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) was dismissed with costs. The ground on which the application for judicial review was made to the Federal Magistrates Court was that the Tribunal’s decision was affected by jurisdictional error in that the hearing conducted by the Tribunal was so short that the appellants did not have a real opportunity to present their case.

3 The appellants had the benefit of legal representation before the Federal Magistrates Court. The reasons for judgment of the learned Federal Magistrate, Lloyd-Jones FM, record that the appellants conceded that the reasoning of the Tribunal does not disclose jurisdictional error. However, the appellants argued that the Tribunal member should have done more to elicit details from the first appellant, who represented himself, his wife and their children before the Tribunal. No evidence was tendered to the Federal Magistrates Court identifying further material or submissions that the appellants wished to place before the Tribunal. Lloyd-Jones FM found that no jurisdictional error affecting the decision of the Tribunal had been demonstrated. His Honour dismissed the application for review of the decision of the Tribunal.

4 The original notice of appeal to this Court did not identify any ground of appeal. An amended notice of appeal filed on 15 November 2004 identifies the following ground:

5 On 16 November 2004 I conducted a directions hearing in respect of this appeal. The first appellant had earlier been granted leave to address the Court on behalf of the other appellants. Orders were made on that day for the preparation of the appeal for hearing and authorising my Associate to list the appeal for hearing. The orders made included an order that the appellants file and serve a written outline of submissions by 31 January 2005. The orders made were conditional on the Chief Justice not directing that the appeal be heard by a Full Court. The Chief Justice did not direct that the appeal be heard by a Full Court but directed that it be heard by a single judge.

6 By letter dated 15 December 2004 the appellants were advised that their appeal would be heard by a single judge on 8 February 2005. The appellants did not file and serve a written outline of submissions by 31 January 2005 or at all.

7 When the appeal was called for hearing the first appellant asked that the hearing be adjourned to enable him to seek legal advice. He said, in answer to a question from me, that he had not earlier sought legal advice because he was relying on obtaining help from a friend, but he had discovered approximately one month ago that his friend had returned to Fiji. No explanation was offered for his not having sought legal advice during the month immediately preceding the listed hearing date. The respondent opposed the grant of an adjournment.

8 No evidence was placed before me in support of the adjournment application. I was not satisfied that the adjournment sought would lead to the appellants obtaining legal assistance in respect of this appeal. Taking into account my lack of satisfaction in this regard together with the date on which the decision under appeal was pronounced, the length of time that has passed since the appellants learnt of the appeal hearing date, the apparent weakness of the only ground of appeal and the unsatisfactory explanation offered by the first appellant for not having sought legal advice earlier, I did not consider that the interests of justice would be served by my granting the adjournment sought. The application for an adjournment was refused.

9 The first appellant advanced only limited submissions in support of the ground set out in the amended notice of appeal. He was unable to indicate, when I asked him to do so, what more the Tribunal member could have done to enable him to say all that he wished to say in support of the claim that he and his family were entitled to protection visas. He suggested that if he had been given a second hearing he might have been better able to present his claims and those of his family. I understood him by this to be suggesting that his mental state at the time of the hearing handicapped him in presenting his family’s claims. However, he did not suggest, nor does the transcript of the hearing record, that he advised the Tribunal member of any difficulties that he might have been experiencing in presenting the appellants’ case to the Tribunal.

10 The transcript of the Tribunal hearing reveals that the Tribunal member carefully outlined to the first appellant what it was that she needed to be satisfied of before the appellants could be granted protection visas. She asked the first appellant to tell her why he thought that he was a refugee. She sought details of the problems that he said that he and his family had experienced in Fiji. Having heard his response, she asked if there was anything else that the first appellant feared about returning to Fiji. She asked the first appellant if he wished to comment on the fact that she experienced difficulty in seeing that what he feared could be considered as persecution in the relevant sense. Additionally the transcript records the Tribunal member as saying near the end of the hearing:

The first appellant is recorded as confirming that he had told the Tribunal member everything that he wanted her to know.

11 Nothing in the transcript of the Tribunal hearing suggests any bias on the part of the Tribunal member or any denial of procedural fairness to the appellants. So far as can be judged from the transcript, the Tribunal member took appropriate steps to help the first appellant to give the evidence that he wished to place before the Tribunal and to present the arguments that he wished to advance in support of the claims that he and his family were entitled to protection visas (see subs 425(1) of the Migration Act 1958 (Cth)). The hearing was relatively brief but this appears to be a reflection of the limited nature of the evidence and arguments that the first appellant chose to advance. The Tribunal member sought details of the claims made by the first appellant. It was not for her to suggest additional claims that might have been made on behalf of the appellants. The transcript does not suggest that the Tribunal sought to bring the hearing to a premature end.

12 The Federal Magistrate rightly rejected the submission made on behalf of the appellants that the decision of the Tribunal was affected by jurisdictional error because the Tribunal member did not elicit more details from the first appellant at the Tribunal hearing and because the hearing was too short.

13 For the above reasons I concluded on 8 February 2005 that the only ground of appeal relied upon by the appellants was without merit. I made the orders referred to in [1].

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Counsel for the Applicant:	The applicant appeared in person.

Counsel for the Respondent:	R Francois

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	8 February 2005

Date of Judgment:	8 February 2005

Date of Publication of Reasons:	11 February 2005

1.	The appeal be dismissed.
2.	The appellants pay the respondent’s costs.

Federal Court of Australia

SZBZW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 72 (8 February 2005)