SZDBF v Minister for Immigration and Citizenship [2009] FCA 85 (11 February 2009)

Last Updated: 13 February 2009

FEDERAL COURT OF AUSTRALIA

SZDBF v Minister for Immigration and Citizenship [2009] FCA 85

MIGRATION – application for protection visa

Held: appeal dismissed

Migration Act 1958 (Cth)
Federal Court of Australia Act 1976 (Cth)

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2007] HCA 1
SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26
SZDBF v Minister for Immigration & Anor [2008] FMCA 1379

SZDBF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR
NSD 1815 of 2008

JAGOT J
11 FEBRUARY 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1815 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDBF Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	11 FEBRUARY 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal is dismissed.
2. The appellant is to pay the first respondent’s costs as agreed or taxed.
3. The exhibits are returned.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1815 of 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDBF Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	JAGOT J
DATE:	11 FEBRUARY 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against an order of the Federal Magistrates Court of 2 October 2008 dismissing an application for judicial review of a decision of the Refugee Review Tribunal in connection with refusal of a protection (class XA) visa under s 65 of the Migration Act 1958 (Cth) (SZDBF v Minister for Immigration & Anor [2008] FMCA 1379). Under s 36(2) of the Act the criterion for a protection visa is that the applicant for the visa is (relevantly) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (meaning, in accordance with s 5(1), the 1951 Convention relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees). Section 474 of the Act protects “privative clause decisions” (defined to include decisions with respect to protection visas) from challenge other than on the grounds of jurisdictional error.
2. The appellant is a citizen of India. He arrived in Australia on 26 April 2003 and applied for a protection visa on 23 May 2003. The Minister’s delegate refused the application on 8 September 2003. The appellant applied to the Refugee Review Tribunal for a review of this refusal on 8 October 2003. The Tribunal affirmed the delegate’s decision on two occasions (4 February 2004 and 25 July 2006) but on each occasion, on appeal to the Federal Magistrates Court, the Tribunal’s decision was quashed by consent orders (dated 3 April 2006 and 6 February 2008). The Tribunal invited the appellant to attend and the appellant attended a further hearing on 8 May 2008. The Tribunal forwarded a letter to the appellant on the same date requesting comments on information that the Tribunal considered would be the reason or part of the reason for deciding that the appellant was not entitled to a protection visa (as required by s 424A of the Act). The appellant responded by letter dated 19 May 2008. On 19 June 2008 the Tribunal affirmed the decision of the Minister’s delegate that the appellant was not entitled to the grant of a protection visa. On 16 July 2008 the appellant appealed to the Federal Magistrates Court against this decision. The Federal Magistrates Court, on 2 October 2008, found that the appellant’s claims of jurisdictional error by the Tribunal were unsubstantiated and thus dismissed the application for review.
3. On 20 November 2008 the appellant filed an appeal in this Court against the dismissal of the application for review by the Federal Magistrates Court. The notice of appeal identifies two grounds. First, that the Federal Magistrates Court erred by failing to consider that the Tribunal ought to have given the appellant the benefit of the doubt in circumstances where the Tribunal accepted the possibility of the plausibility of the appellant’s claims so that it was open to the Tribunal to find that the appellant was a refugee. Secondly, that the Federal Magistrates Court erred by not finding that the Tribunal denied the appellant procedural fairness in that the Tribunal drew adverse conclusions about the appellant not being involved in student politics or with the Bharatiya Janata Party (BJP), these being conclusions that were not obviously open on the known material and without giving the appellant an opportunity to be heard about those matters.
4. When the matter was called for hearing this afternoon the appellant did not appear. The Minister sought an order for summary dismissal of the proceedings under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). That section permits the dismissal of proceedings where an appellant fails to attend a hearing relating to an appeal. The Minister relied on two letters in support dated 19 January and 5 February 2009 each of which notified the appellant of the time and place of the hearing and advised that the Minister would seek dismissal of the appeal if the appellant failed to appear. Given these circumstances I am satisfied that the appeal should be dismissed.
5. It is also relevant to note that, in any event, I consider that neither ground of appeal notified by the appellant can be sustained. The first ground is a challenge to the merits of the Tribunal’s decision. It was a matter for the Tribunal alone to weigh the material before it and determine whether or not to accept the appellant’s claims. The Tribunal was entitled to find that the appellant was not a plausible witness and to reject his claims about his political activities and the threat of persecution. The second ground fails to recognise that the Tribunal was entitled (indeed, bound) to weigh up all of the available material when assessing the appellant’s claims. The fact that the Tribunal reached a conclusion adverse to the appellant does not mean that the Tribunal denied the appellant procedural fairness.
6. The Tribunal, by letter dated 8 May 2008, informed the appellant about a range of information that would be the reason or part of the reason for rejecting his claims and invited the appellant to comment. This letter included reference to the appellant’s political activities and other circumstances said to indicate that some or all of the appellant’s claims were not truthful. The Tribunal considered the appellant’s response (as its reasons disclose) but concluded that the appellant was not a truthful or credible witness by reason of the contradictions and inconsistencies in and implausibility of many of the appellant’s claims. Credibility findings are a matter for the Tribunal “par excellence” (Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407; [2007] HCA 1 at [67]). The Tribunal’s appraisal of the appellant’s credibility was not “information” requiring the Tribunal to comply with the notification and related procedures in s 424A of the Act (SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 at [15]). It was open to the Tribunal to make the factual findings that it did.
7. For these reasons the appeal must be dismissed. The Minister is also entitled to an order for costs.
   

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated: 11 February 2009

The Appellant did not appear.
Solicitors for the First Respondent:	Australian Government Solicitor
The Second Respondent did not appear.

Date of Hearing:	11 February 2009
Date of Judgment:	11 February 2009