SZNOP v Minister for Immigration and Citizenship [2010] FCA 179 (9 March 2010)

Last Updated: 9 March 2010

FEDERAL COURT OF AUSTRALIA

SZNOP v Minister for Immigration and Citizenship [2010] FCA 179

Citation:		SZNOP v Minister for Immigration and Citizenship [2010] FCA 179
Appeal from:		SZNOP v Minister for Immigration and Citizenship [2009] FMCA 1269
Parties:		SZNOP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number(s):		NSD 8 of 2010
Judges:		JAGOT J
Date of judgment:		9 March 2010
Legislation:		Migration Act 1958 (Cth)
Cases cited:		Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20; [2000] FCA 1265 SZNOP v Minister for Immigration and Citizenship [2009] FMCA 1269
Date of hearing:	2 March 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	13
Counsel for the Appellant:	The Appellant appeared in person assisted by an interpreter.
Solicitor for the First Respondent:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 8 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNOP Appellant

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

JUDGE:	JAGOT J
DATE OF ORDER:	9 MARCH 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
   

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 8 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNOP Appellant

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

JUDGE:	JAGOT J
DATE:	9 MARCH 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against orders of the Federal Magistrates Court (SZNOP v Minister for Immigration and Citizenship [2009] FMCA 1269) dismissing the appellant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal affirmed that the appellant is not entitled to a Protection (Class XA) visa under the Migration Act 1958 (Cth).
2. The notice of appeal filed on 5 January 2010 states the grounds of appeal as:

1. I am a citizen of India.
2. I am not at all satisfied with the judgment of Federal Magistrate court.
3. I wish to give an appeal against this judgment to Hon: Federal Court.

3. The notice of appeal does not identify any alleged error by the Federal Magistrates Court. Nor does it assert any jurisdictional error by the Tribunal which is the only basis upon which the Federal Magistrates Court could have acted to set aside the Tribunal’s decision.
4. In oral submissions to this Court the appellant raised the following further grounds of appeal (which I have paraphrased):

(1) due to his psychological condition (which causes memory problems) the appellant requested that the Tribunal postpone the hearing, however the Tribunal refused;

(2) the Tribunal had evidence of the treatment the appellant was receiving for his psychological condition;

(3) the Tribunal did not give weight to the appellant’s submissions;

(4) the appellant has not been able to effectively argue his case because he does not have legal representation; and

(5) the Federal Magistrate did not give weight to these matters (that is, grounds 1 to 4).

5. There is no evidence that the appellant requested a postponement of the hearing before the Tribunal. The appellant filed no such evidence in the Federal Magistrates Court. The appellant submitted that his request and its refusal occurred before recording of the hearing commence; but that submission is not a substitute for evidence. In any event, both the Tribunal and the Federal Magistrates Court dealt with the appellant’s psychological condition. In this regard the Federal Magistrate observed as follows at [19]:

The Tribunal addressed the issue of the applicant’s participation in the following way:

I accept that the applicant’s symptoms include a loss of concentration and a depressed view but, having taken account of the applicant’s medical condition as diagnosed by the psychologist, I considered that the applicant was able to participate effectively in the hearing before the Tribunal. I note that the applicant has been given ample time after the hearing to address the problems with his evidence which I raised with him at the hearing. (CB 216)

I am satisfied that the Tribunal member has addressed the issue as to whether the applicant could participate in the hearing in a “real and meaningful sense” and that no breach of s.425 is apparent.

6. I agree. Accordingly, the first and second ground of the appellant’s case must be rejected.
7. As to the third ground, weight is a matter for the Tribunal.
8. As to the fourth ground, there was no obligation on the Tribunal to ensure that the appellant had legal representation: Nguyen v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 20; [2000] FCA 1265. The Federal Magistrate also noted at [8] that:

At the first court date directions hearing on 27 May 2009 the applicant indicated that he wished to participate in the panel advice scheme and his details were referred to the Court registry to arrange this review. A panel member was allocated to the applicant who contacted him and requested him to attend a conference. However the applicant failed to attend and the panel advisor forwarded written advice. At the first court date directions hearing, I granted the applicant leave to file and serve an amended application giving complete particulars of each ground of review relied upon by 3 August 2009. Despite having received written advice from the panel advisor prior to this date this order was not complied with.

9. The fourth ground therefore must also fail.
10. As to the fifth ground, there was no error in the Federal Magistrate’s approach. The Federal Magistrate noted at the beginning of his reasons:

[9] In the absence of any pleaded grounds of review, written or oral submissions I have paid particular attention to the contents of the Tribunal decision in order to review that decision independently to determine whether any jurisdictional error is evident.

11. The Federal Magistrate’s reasons disclose a close consideration of the relevant circumstances and potential arguments that might underlie the application for judicial review.
12. Accordingly, I am satisfied that the appellant has not demonstrated any error by the Federal Magistrates Court. For these reasons the appeal must be dismissed. The Minister is entitled to an order for costs but has indicated that an order for costs in a fixed sum will be sought.
    

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated: 9 March 2010