SXRB v Minister for Immigration & Multicultural & Indigenous Affairs & Ors [2006] FCAFC 14 (20 February 2006)

Last Updated: 27 February 2006

FEDERAL COURT OF AUSTRALIA

SXRB v Minister for Immigration & Multicultural & Indigenous Affairs & Ors [2006] FCAFC 14

MIGRATION – s 424A Migration Act 1958 (Cth) – appeal dismissed


Migration Act 1958 (Cth), s 424A

SXRB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS, GILES SHORT MEMBER REFUGEE REVIEW TRIBUNAL AND PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SAD 228 OF 2005

KIEFEL, KENNY AND GRAHAM JJ
20 FEBRUARY 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	SAD 228 OF 2005

BETWEEN:	SXRB APPELLANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT GILES SHORT, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT
JUDGE:	KIEFEL, KENNY AND GRAHAM JJ
DATE OF ORDER:	20 FEBRUARY 2006
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the first respondent’s costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	SAD 228 OF 2005

BETWEEN:	SXRB APPELLANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT GILES SHORT, MEMBER REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL THIRD RESPONDENT

JUDGE:	KIEFEL, KENNY AND GRAHAM JJ
DATE:	20 FEBRUARY 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT GIVEN EX TEMPORE

THE COURT:

1 Last week, the appellant applied for an adjournment of the hearing of this appeal on the grounds, first, that he has no legal representation and wished to acquire some and, secondly, he needed further preparation time. The first respondent has opposed this application.

2 A solicitor retained by the appellant filed a notice of appeal on 20 September 2005. On or about 20 January 2006, the appellant’s solicitor gave notice that he ceased to act for the appellant. At the hearing, the appellant appeared by teleconference from Brisbane and reiterated the reasons for his application.

3 For the reasons we have given we would refuse the appellant’s adjournment application.

4 The appellant is a citizen of Sudan. When he arrived in Australia in October 2003, he held a Business (Short Stay) visa for the stated purpose of attending a medical conference. He applied for a Protection (Class XA) visa on 7 November 2003, on the ground that he had a well-founded fear of persecution by Sudanese security forces by reason of imputed political opinion. A delegate of the first respondent refused his application on 12 December 2003. He applied to the Refugee Review Tribunal ("RRT") for review. The RRT subsequently rejected his claims as implausible and affirmed the decision not to grant him a protection visa. The appellant applied to this Court for judicial review.

5 The primary judge dismissed his application. His Honour rejected a contention that the RRT fell into jurisdictional error. The appellant appeals from this judgment.

6 The principal question raised by the appeal is whether s 424A of the Migration Act 1958 (Cth) has the consequence that the RRT was obliged to provide the appellant with copies of certain documents. We do not consider that it does.

7 Section 424A requires the RRT to give an applicant for review particulars in writing of any information that the RRT considers would be the reason, or a part of the reason, for affirming the decision under review. It also requires the RRT to ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review and to invite the applicant to comment on it. The RRT was required to give the relevant particulars in writing before making its decision.

8 In conformity with this obligation, the RRT wrote to the appellant by letter dated 24 August 2004 giving him the particulars of the information that the RRT considered would be the reason or part of the reason for affirming the decision under review. These particulars were:

• In the application for the business visa on which he travelled to Australia, signed by him on 14 February 2003, he gave his current occupation as student;
• This application was supported by a letter from the Registrar of the Faculty of Medicine and Health Sciences at the University of Kordofan stating that the appellant was a medical student at that university;
• The Australian Embassy in Cairo telephoned the appellant and he confirmed that he was a fifth year student at that university;
• The Deputy Registrar of the Faculty of Medicine and Health Sciences at the University of Kordofan contacted the Australian Embassy to support the appellant; and
• The application was supported by the Sudanese Embassy in Cairo through direct representations which the Sudanese Ambassador made to the Australian Ambassador and by a letter dated 23 August 2003.

The letter also explained the potential significance of this information to the RRT’s decision. The appellant provided detailed responses to this letter.

9 The terms of s 424A do not require the RRT to do other than give "particulars" of certain information. Considered fairly, the particulars given under s 424A must be such as to show clearly the content of the relevant information and its potential significance to the Tribunal’s decision in order that the applicant can understand what may be said against him or her. Section 424A does not require the Tribunal to give the documents from which the information is derived. The particulars of information provided in the Tribunal’s detailed and lengthy letter of 24 August 2004 clearly met the requirements of s 424A of the Act.

10 The second issue raised on the appeal by the notice of appeal concerned his Honour’s finding that the RRT could, at the time it wrote its letter of 24 August 2004, reasonably understand that the appellant had copies or access to the documents in question and that he was fully aware of their contents. This finding was not relevant to any question under s 424A, although it was relevant to his Honour’s rejection of the contention that the RRT failed to accord procedural fairness.

11 It was plainly open to his Honour to make the finding in question. It was entirely consistent with his Honour’s other unchallenged findings that: (1) the documents had apparently been created by or on behalf of the appellant; and (2) when the Tribunal wrote its letter of 24 August 2004, "it had no reason to think that ... the applicant’s case was that those documents had been created by his brother and contained false information included by his brother". All these findings were open to his Honour on the evidence before him.

12 For these reasons, we would dismiss the appeal with costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, Kenny and Graham.

Associate:

Dated: 20 February 2006

Solicitor for the Appellant:	Self-represented
Counsel for the First Respondent:	Mr M Roder
Solicitor for the First Respondent:	Sparke Helmore
Date of Hearing:	20 February 2006
Date of Judgment:	20 February 2006