SZASF v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1348
•12 OCTOBER 2004
FEDERAL COURT OF AUSTRALIA
SZASF v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1348SZASF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1231 of 2004
WILCOX ACJ
12 OCTOBER 2004
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1231 of 2004
BETWEEN:
SZASF
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
WILCOX ACJ
DATE OF ORDER:
12 OCTOBER 2004
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2.The appellant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.
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 1231 of 2004
BETWEEN:
SZASF
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
WILCOX ACJ
DATE:
12 OCTOBER 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
WILCOX J:
This is an appeal from a decision of Driver FM dismissing an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’). Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), Spender ACJ directed that the jurisdiction of the Court in the matter be exercised by a single judge.
The appellant is a national of Bangladesh who came to Australia in late 2000 and sought a protection visa on the basis of his political opinion. He claimed he had been active in the Freedom Party in Bangladesh for a number of years before leaving that country.
It appears that the appellant’s application to the Tribunal was fixed for hearing on 31 January 2003. Shortly before that date, the appellant's adviser requested a postponement of the hearing for at least three months, on the ground that the appellant was suffering from a mental illness. The adviser enclosed a report from a consulting psychologist which stated that the appellant suffered from a generalised anxiety disorder.
Apparently the Tribunal member was not clear about the purport of the psychologist's report. He decided the hearing should proceed on 31 January 2003. However, on that day, the Tribunal member noted that the appellant was unresponsive to questions, claimed he could not remember things and had a headache. The Tribunal member therefore decided not to proceed with the hearing on that day, but to adjourn it and to make arrangements for the appellant to be examined by a psychiatrist. This was done.
On 27 March 2003, the psychiatrist provided a report to the Tribunal in which he expressed the opinion that the appellant was neither depressed nor anxious and that he was malingering. The psychiatrist thought the appellant did not have an ongoing psychiatric disorder and that there was no reason he could not be questioned in relation to his claim for refugee status. The Tribunal informed the appellant's adviser of the psychiatrist's opinion that the appellant was fit to attend a hearing. It did not send a copy of the psychiatrist's report to the appellant or his adviser.
A new hearing date was fixed for 6 May 2003. However, on 22 April 2003, the appellant's adviser notified the Tribunal that the appellant did not propose to attend the hearing and requested the Tribunal to make a decision on the information already available to it. It appears the Tribunal then considered the matter on the basis of that material. The Tribunal was not satisfied of the truth of many of the appellant's claims or that he had a well‑founded fear of persecution if he was returned to Bangladesh. Accordingly, the application for review was dismissed.
It seems the only matters argued before the magistrate were whether the Tribunal should have provided a copy of the psychiatrist's report to the appellant and whether the Tribunal erred in deciding that the appellant was fit to attend a hearing. Reference was made to ss 424A and 425 of the Migration Act 1958 (Cth) (‘the Act’).
The magistrate saw a distinction between a document received by the Tribunal as being relevant to its ultimate decision and a document relating to the question whether a hearing should proceed at a particular time. Nonetheless, the magistrate called for and considered the psychiatrist's report. He summarised the psychiatrist's conclusion, as set out in para 5 above. He noted that the essential details of these opinions had been conveyed to the appellant by letter dated 27 March 2003. He commented that the appellant could, if he had wished, have sought to challenge that opinion. He noted that the appellant did not do this and did not seek access to the report, a matter that the appellant had confirmed from the bar table.
Having regard to the above, it seems to me the magistrate was correct to say there was no breach of the Tribunal's obligation to afford a fair hearing to the appellant. I think he was also correct to say that there was no breach of ss 424A and 425 of the Act. I agree with the reasons for judgment of the magistrate.
The appeal must be dismissed with costs.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Wilcox. Associate:
Dated: 28 October 2004
The Appellant appeared in person with the assistance of an interpreter. Counsel for the Respondent: Ms R A Pepper Solicitor for the Respondent: Sparke Helmore Date of Hearing: 12 October 2004 Date of Judgment: 12 October 2004
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