SZADN v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1120

FEDERAL COURT OF AUSTRALIA

SZADN v Minister for Immigration & Multicultural & Indigenous Affairs   [2003] FCA 1120

MIGRATION – protection visa – appeal from decision of a Federal Magistrate which found no error in the decision of the Refugee Review Tribunal, which affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs – where the appeal is hopeless.

PRACTICE AND PROCEDURE – application for an adjournment on appeal from a decision of the Federal Magistrate – where the appeal is hopeless.

SZADN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N675 OF 2003

HILL J
SYDNEY
24 SEPTEMBER 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N675 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZADN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	24 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. Appellant’s application for an adjournment denied.
2. The appeal be dismissed.
3. The appellant pay the respondent Minister’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
NEW SOUTH WALES DISTRICT REGISTRY	N675 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZADN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	24 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is citizen of Pakistan.  He applied for a protection visa on 15 April 2002.  In due course the application came before a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs.  The following appears from the decision of the delegate:

   ‘The department wrote to the applicant and his representative on 10 September 2002 inviting the applicant to attend an interview with a departmental delegate.  Interview arrangements were confirmed with the applicant's representative on the same day.  On 16 September 2002 the applicant wrote to the department advising that he could not attend the interview and requesting the decision be made on the material that had been submitted by the applicant.’

2. The delegate formed the view that the appellant was not a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as modified by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967 (herein called ‘the Convention’). 

3. The appellant then applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision.  On 3 October 2002 the appellant was taken into immigration detention.  He remained in detention until 14 August 2003.

4. In due course the Tribunal notified the appellant that the Tribunal was unable to make a decision in his favour on the material before it and invited the appellant to attend a hearing and to give oral evidence and present arguments.  The hearing was scheduled for 3 January 2003.  On 27 December 2002, the appellant wrote to the Tribunal seeking the postponement of the scheduled hearing because he had asked some friends in Pakistan to collect evidence in relation to his case.  The appellant said that his friends had asked him to give them a few months to collect the evidence.  That letter was received by the Tribunal on 30 December 2002.

5. The next day the Tribunal wrote to the appellant advising him that it was not prepared to grant the postponement requested.  It noted that the appellant would have the opportunity to discuss at the hearing the evidence the appellant had stated he was expecting from Pakistan.  On 2 January 2003, the appellant again wrote to the Tribunal saying that he needed time to collect evidence.  He said that because of Christmas and New Year events his lawyer and ‘witness of my case’ would not be able to appear before the Tribunal with him.  On 3 January 2002 the appellant notified the staff at the Immigration Detention Centre that he did not wish to attend the scheduled hearing before the Tribunal.  The Tribunal therefore proceeded to deal with the application on the papers.

6. The appellant’s claim to be entitled to a protection visa arose out of an association that he claimed that his family had with a Sunni extremist group known as the SSP.  It is unnecessary here to detail the claim.  It is centred upon an incident at a mosque which the appellant said his family had built in which people from an opposition Shia extremist group was said to have attacked people.  The appellant claimed to have received some minor injuries and then to have left home because he feared for his life.

7. He went to the United Arab Emirates where he obtained work as a computer professional, claimed he was threatened in that country and could not be protected there.  He ultimately returned to Pakistan and then left on a student visa for Australia where he arrived in February 2001 where he did not see fit to apply for a protection visa for some 14 months thereafter.  The Tribunal formed the view that it was unable to be satisfied on the material before it that the government of Pakistan would not provide the appellant with effective protection against the persecution he said he feared.

8. It concluded that it was unable to be satisfied that the appellant had a well-founded fear of being persecuted for a Convention reason.  If he returned to Pakistan accordingly, the appellant was not a person to whom Australia had protection obligations.  The appellant then sought judicial review of the Tribunal's decision and a Federal Magistrate ultimately heard the application on 19 May 2003.  The application for review claimed that there had been an error on the part of the Tribunal, that it had failed to make a bone fide attempt to exercise its powers and that it had not acted in good faith.

9. When the matter came before the learned Federal Magistrate for hearing, counsel for the Minister handed to the Federal Magistrate a fax which the appellant had sent to the Australian Government Solicitor.  That fax read as follows:

   ‘I kindly inform you that I do not want to go to Federal Court because I have to proceed with this matter in a different way.  I am highly obliged to you.’

10. The fax was signed by the appellant.  Not surprisingly, the Federal Magistrate was unable to find any jurisdictional error in the decision of the Tribunal and dismissed the appellant's application for review with costs.  Undeterred, the appellant filed an appeal in this court on 5 June 2003.  The matter was listed before me for directions on 29 July 2003.  On this occasion, at least, the appellant deigned to attend.  I listed the matter for hearing on 24 September 2003, that is to say some three and half months after the appellant filed the appeal in this court.

11. I said at the time that I was not convinced that any further time would be of assistance to the appellant in the appeal.  On 17 September 2003, the appellant wrote to the Court.  He said that he wished to inform ‘the department’ that he would be unable to attend the hearing listed for today for a number of reasons.  The first was said to be financial hardship.  The second was that he did not have any solicitor or representative or barrister to handle the hearing for him.  He said also that evidence was not available because these had been lost during his time in detention ‘because of my friend's irresponsibility’.

12. He noted that he had been unable to get financial support because he had been in detention until 14 August 2003.  He said that he had arranged to obtain from Pakistan, where his parents live, the sum of $10,000 to enable him to post security for his being released from detention and as a result of which he had received a bridging visa.  The demand for these funds had made ‘too much financial pressure on’ his parents who were unable to send him more funds.  He was therefore not able to arrange any lawyer or barrister for his hearing.

13. He said he wished to arrange the evidence and proofs which would be helpful for his case and without these he could not come for the hearing.  I had my associate immediately send by facsimile transmission advising that I would hear the application for adjournment at 2.15 pm this afternoon and that should the application be unsuccessful he should be prepared to argue the appeal from the Federal Magistrate's decision.

14. In support of the application for adjournment the appellant handed to me a letter dated in April from a barrister effectively declining to act for him on the grounds that that the barrister had formed the view he had no case.  He sought an adjournment for at least three months to obtain both money and legal representation despite the fact that he had made no attempt since the appeal to this Court was filed to obtain legal representation and despite the fact that the letter he had written seeking an adjournment suggested that his chances of obtaining money were relatively minimal.

15. Ordinarily if a person seeks an adjournment to obtain legal representation, the interests of justice would require at least if there was a reasonable chance that such representation would be obtained the granting of an adjournment unless there were some special prejudice to the party opposing the application for adjournment.

16. However, it seems to me that the present is a special case and that the adjournment should be refused for the following reasons. 

    (1) At no time until now has the appellant even bothered to participate in appeals or reviews concerning his case.  In fact, to the contrary he indicated to the Federal Magistrate that he did not wish to proceed with it. 

    (2) The appellant has not demonstrated that he has sought to obtain legal advice at least since that was refused to him before the present proceedings were commenced. 

    (3) On the material presented to me there seems virtually no chance that the appellant will have sufficient money to pay legal advisers even if it's possible that his parents might be able to pay moneys to Australia to sustain him in food and accommodation.  

    (4) The Tribunal's reasons display no jurisdictional error.  The Tribunal did the best it could from the materials in writing before it unaided by any evidence of the appellant.  It is difficult to see in those circumstances how there could be jurisdictional error.

    (5) In any event the present appeal is not an appeal from the decision of the Tribunal but an appeal from the Federal Magistrate.  There is nothing in the Magistrate's reasons for judgment which displays any error on his Honour's part.  

    (6) The suggestion that an adjournment is needed to obtain further evidence misunderstands the nature of the present procedure.  Matters of fact are for the Tribunal, and not for either the Federal Magistrate or this Court on appeal from the Federal Magistrate.  Evidence that was before the Tribunal could not be admitted as a matter relevant to judicial review of the Tribunal's decision and certainly not when the matter comes on appeal from a decision of the Federal Magistrate when very exceptional circumstances would need to be shown before fresh evidence could be adduced.  I should note that the appellant at no time sought to indicate the nature of this evidence or how in any way it might be relevant to an appeal from the decision of the Federal Magistrate let alone to judicial review of the Tribunal's decision.

17. I have formed the view that the present application for adjournment is but an attempt on the part of the appellant to obtain a further delay of his appeal rights being exhausted.  The history of the matter seems essentially to be a continuous attempt of seeking adjournments and then not participating in the relevant legal steps.  It is for this reason that I do not think that an adjournment should be granted because I am not satisfied that the situation will be any different on the adjourned date from that which prevails at the moment.

18. I accordingly refuse the application for adjournment.  Having refused the adjournment I proceeded to hear the appeal. Not surprisingly because the appellant was unrepresented he was unable to point to any legal error on the part of the Federal Magistrate.  At one stage the appellant suggested that he had been unable to present argument before the Federal Magistrate. However, that hardly could be a ground of appeal when the appellant deliberately did not participate in the application for judicial review before the Federal Magistrate.

19. Of course it was the appellant's view that the Magistrate's decision was wrong, as was the decision of the Tribunal.  However, the appellant did not seek to submit that there was any legal error on the part of the Magistrate and I am satisfied from reading the Magistrate's decision that there is none and that the appellant's appeal is hopeless.  I would accordingly dismiss the appeal with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:            24 September 2003

Counsel for the Applicant:	Appellant appeared in person.
Counsel for the Respondent:	R Beech Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 September 2003
Date of Judgment:	24 September 2003