SZCJO v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 48 (6 February 2006)

Last Updated: 15 February 2006

FEDERAL COURT OF AUSTRALIA

SZCJO v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 48

SZCJO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1864 OF 2005

STONE J
6 FEBRUARY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1864 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCJO APPELLANT
AND	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
	REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	6 FEBRUARY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal be joined as the second respondent.
2. The appeal be dismissed.
3. The appellant pay the first respondent’s 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	NSD 1864 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCJO APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
	REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	STONE J
DATE:	6 FEBRUARY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from the judgment of a Federal Magistrate delivered on 15 September 2005 dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 12 November 2003 and handed down on 4 December 2003. The Tribunal had affirmed a decision of a delegate of the first respondent refusing to grant the appellant a protection visa.

Background

2 The appellant, a citizen of India, arrived in Australia on 21 April 2003 and shortly thereafter lodged an application for a protection visa. For present purposes it is sufficient to note that the appellant made claims based on religion, political opinion and his membership of a particular social group.

3 In its reasons for decision the Tribunal stated that it had written to the appellant on 10 September 2003 advising him that it was unable to make a favourable decision on the material before it and inviting him to attend a hearing on 28 October 2003. The Tribunal advised the appellant that failure to attend might result in the Tribunal deciding his application without further notice. Although the appellant accepted the invitation he did not appear at the arranged time or otherwise contact the Tribunal. Pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’), the Tribunal made its decision without further reference to the appellant and found that, in the absence of additional information, it was unable to clarify the complex claims made by the appellant. As a result, it was unable to satisfy itself that the appellant had a well-founded fear of Convention-related persecution.

Proceedings in the Federal Magistrates Court

4 Before the Federal Magistrate, the appellant made a number of challenges to the Tribunal’s decision. The majority of these challenges were rejected by his Honour as disclosing no reasonable cause of action or because they attempted to challenge the merits of the Tribunal’s decision. In dealing with the only claim of substance, his Honour stated at [8]-[10]:

‘...That ground is that the RRT failed to consider the applicant's case in the light of the Refugees Convention and the RRT was influenced significantly about the applicant's non-attendance at a hearing. The first assertion is incorrect. The RRT did consider the applicant's claims by reference to the Refugees Convention. The second assertion is correct in that the RRT was influenced significantly by the applicant's non-attendance at the hearing. Pursuant to s.426A of the Migration Act, the RRT was permitted but not required to proceed in the absence of the applicant.. The letter sent to him on 14 October 2003 ... complied with the RRT’s obligation under s.425 of the Migration Act. The applicant had responded accepting the invitation...

The applicant told me today from the bar table that he did not attend the hearing before the RRT as he was afraid following advice he received from a friend that the Minister's Department would use the opportunity to detain him and deport him from Australia. That was very poor advice because the applicant was not at the time an illegal immigrant as he held a bridging visa. He drew nothing to the attention of the RRT that gave the RRT any reason to believe that there might be a problem. In the circumstances, notwithstanding the reason for the applicant's non-attendance, there was no jurisdictional error in the RRT proceeding in his absence.

There is no jurisdictional error in the decision of the RRT. It follows that the decision is a privative clause decision and the application must be dismissed.’

This appeal

5 On 4 October 2005, the appellant filed a notice of appeal in this Court. As the notice of appeal did not specify any grounds of appeal, on 2 November 2005, I ordered the appellant to file and serve an amended notice of appeal. In purported compliance with this order, on 22 November 2005, the appellant filed what purported to be an amended notice of appeal. In fact, it is not an amended version of the original notice but an entirely new notice of appeal. Moreover, it states that it is an appeal from a decision of the Administrative Appeals Tribunal given on 15 September 2005. For present purposes I am prepared to ignore this error and assume that the appellant intends to appeal from the decision of the Federal Magistrate. Even with this concession, however, the notice of appeal does not assist the appellant. In particular, although it refers to alleged errors of the Tribunal, in fact, the allegations appear to relate to the reasons for decision of the delegate of the first respondent, not the decision of the Tribunal.

6 The amended notice of appeal claims that:

(a) the Tribunal’s decision was not made in good faith;
(b) the Tribunal’s decision was not made according to the rules of natural justice;
(c) the Tribunal did not consider, or at least did not consider adequately, whether it was reasonable for the appellant to relocate to another part of India;
(d) the Tribunal did not consider all the claims and issues put forward by the appellant;
(e) the Tribunal did not take into account relevant independent country information; and
(f) the Tribunal did not give proper and adequate reasons for its decision and therefore failed to exercise its jurisdiction.

The fact that the appellant did not raise these allegations before his Honour is a sufficient reason to reject them. At the hearing of the appeal the appellant made no submissions in support of his appeal although invited to do so. He has not suggested that there was any difficulty in raising the new claims before his Honour or that there would be any substantial injustice in not being permitted to raise them now. Irrespective of this, however, it is clear that each of these allegations is without substance.

7 First, the appellant has not adduced any evidence, or pointed to any aspect of the Tribunal reasons, that would support an allegation of bad faith.

8 Secondly, the Tribunal complied with the rules of natural justice. As his Honour noted in the passage quoted above at [4], the Tribunal invited the appellant to attend a hearing in accordance with s 425 of the Act. Despite indicating that he would attend, the appellant did not do so and, as his Honour noted, he admitted this from the bar table. The Tribunal was thus empowered by s 426A of the Act to proceed in the absence of the appellant and did so. There is no jurisdictional error in proceeding in this manner, nor is there a breach of the requirements of procedural fairness.

9 Thirdly, the Tribunal was not required to consider relocation. The Tribunal was not satisfied that appellant had a well-founded fear of Convention-related persecution and on this basis affirmed the delegate’s decision. In these circumstances, the question of relocation did not arise.

10 Finally, in relation to the last three allegations made in the amended notice of appeal, it is clear that the Tribunal considered each of the claims made but, in the absence of further information, was unable to reach the requisite level of satisfaction. Moreover, the Tribunal gave proper and adequate reasons which, while brief, reflect the basis of the Tribunal’s decision; that is, the claims made by the appellant were not supported by sufficient information.

11 For these reasons the appeal must be dismissed. The Tribunal must be joined as a respondent to the appeal. In addition, the appellant must pay the first respondent’s costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated: 14 February 2006

The Appellant appeared in person
Counsel for the First Respondent:	Mr P Carr
Solicitor for the First Respondent:	Blake Dawson Waldron
Date of Hearing:	6 February 2006
Date of Judgment:	6 February 2006