SZBFP v Minister for Immigration - [2004] FMCA 27

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBFP v MINISTER FOR IMMIGRATION

[2004] FMCA 27

MIGRATION – Review of RRT decision made in 1996 – where applicant failed to attend hearing – where applicant alleged she had been denied procedural fairness as she was not notified of information adverse to her claim that was considered by the Tribunal – where the RRT’s decision did not specifically mention all documents referred to by the delegate – whether this omission can be construed as a failure by the Secretary of the Department to comply with s.418(3) Migration Act – where application outside time limits for judicial review.

Migration Act 1958 (Cth), ss.418, 477(1A), (2)
Federal Magistrate's Court Rules 2001 , Part 13.03A(c), Part 21 Rule 21.02(2)(a)

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] 190 ALR 601
SDAN v Minister for Immigration [2002] FCAFC 351
NASF v Minister for Immigration [2002] FCA 1237

Applicant:

SZBFP

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1631 of 2003

Delivered on:

23 January 2004

Delivered at:

Sydney

Hearing date:

23 January 2004

Judgment of:

Raphael FM

REPRESENTATION

For the Applicant:

No appearance

Solicitors for the Respondent:

Australian Government Solicitors

ORDERS

Application dismissed.
The applicant to pay the respondent's costs assessed in the sum of $3,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1631 of 2003

SZBFP

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

These proceedings involve an application for judicial review of a decision of the Refugee Review Tribunal that was made on 22 July 1996. It would appear that notwithstanding the finding by the Tribunal that the applicant was not a refugee, and is not entitled to a protection visa, she has been able to remain in Australia for a further 8 years.
These proceedings were commenced by way of application filed in this court on 15 August 2003. The grounds of the application contain three matters. The first, an allegation that the Tribunal acted in breach of the rules of procedural fairness by taking into account material directly relevant and adverse to the applicant's claims of refugee status without giving her notice of the material, or an opportunity to address.
The second ground was that the Tribunal failed to put to the applicant certain country information which the Tribunal proposed to rely on in coming to a decision adverse to the applicant. The final ground of application was that the respondent failed to provide the Tribunal documents, or part of documents, in the possession or control of the respondent relevant to the review by the Tribunal of the decision of the delegate which the Tribunal relied upon in its decision of 22 July 1996.
The matter came before me for hearing originally on 28 November 2003 when I vacated the hearing date at the request of the applicant in order for her to obtain legal advice pursuant to the Minister's scheme.

I understand from Mr Markus, who appears before me today on behalf of the Minister, that such advice was received, and that he has been in contact with the provider of that advice.
The matter was scheduled to be heard at 10.15 am today, 23 January 2004, but when I came on the bench at about 23 minutes to 11, the applicant had not appeared, and did not appear in response to any call.
Mr Markus has requested that I deal with the matter in the absence of the applicant rather than merely dismiss it pursuant to Part 13.03A(c) of the Federal Magistrate's Court Rules. I think in the special circumstances of this case that is appropriate.
The applicant's claim to have a well-founded fear of persecution arose out of what the Tribunal accepted was the dominating conduct of her father in Indonesia. It is fair to say from a reading of the Tribunal decision that the Tribunal sympathised with the plight of the applicant, and tried very hard to see whether she could be classed as a person who was "a member of a particular social group", in order that her claim could come within the confines of the articles of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967. However, for the reasons stated and found between CB [97] and [100] of the Court Book the Tribunal was unable to so find.
The allegations which were made by the applicant in her application are intended to show that the Tribunal committed a jurisdictional error in the manner in which it came to its conclusions in her case. Unless a jurisdictional error was found the application would be doomed to failure because of the provisions of s.477(1)(A) of the Migration Act1958 (Cth) (“the Act”), and I would not be permitted to make an order allowing her to lodge an application outside the time limit stated in that section pursuant to the provisions of s.477(2).
Mr Markus also impresses upon me the fact that the application lodged some 6 years after the applicant was notified of the decision, and being heard some 8 years afterwards would seem to call for an indication by the court that it would not exercise its discretion even if there was a finding that the Tribunal had committed a jurisdictional error and thus the provisions of the sections previously referred to were not relevant.
Given the fact that there is no applicant here, I do not think this is the case in which I should opine upon the occasions on which discretion should be exercised in these matters if it is unnecessary to do so.

I believe it is unnecessary because there is nothing in any document before me which could indicate how the applicant intended to establish the allegations or claims which she made in her application.
In his helpful written submissions Mr Markus points out that the first two grounds of the application appear to be related in that they both allege a denial of procedural fairness on the basis that the Tribunal took into account information adverse to the applicant without giving her notice of that information. The only substantial difference between the allegations is that ground number 2 is more narrowly cast purporting to limit adverse material relied upon by the Tribunal to "country information".
The difficulty which the applicant would have had (if she had appeared) in putting this claim, is that the Tribunal did not rely on any country information material or any other adverse information as part of its reasoning processes. In fact, the Tribunal was prepared to accept claims made by the applicant but rejected her application on the basis of findings not related to any country information or any other material.
Ground number 3 is suggested by Mr Markus to appear to be raising the point argued in the matters of Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] 190 ALR 601, to the effect that the Secretary of the Department had failed to comply with s.418 of the Act. Mr Markus' submissions deal with that matter and point out that simply because some documents referred to by the delegate were not cited by the Tribunal does not mean that the secretary was in breach of the obligation imposed by s.418(3) or even that the documents were not conveyed to the Tribunal: see SDAN v Ministerfor Immigration [2002] FCAFC 351 at [8] and NASF v Minister for Immigration [2002] FCA 1237 at [29-30].
Mr Markus points out that there is no evidence before the court that the Secretary considered the documents referred to in the delegate's decision were relevant to the review of the decision, and the argument must fail because it has no evidentiary basis.
A perusal of the Court Book and the decision indicates the correctness of Mr Markus' views, which I adopt with gratitude.
In all the circumstances, I am unable to find that the Tribunal erred in any way, let alone by falling into jurisdictional error in the manner in which it came to its conclusion in these proceedings. In those circumstances, it seems to me that section 477(1)A of the Act applies and these proceedings are incompetent and must be dismissed.
I order that the proceedings be dismissed. The applicant is to pay the respondent's costs which I assess in the sum of $3,000 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrate's Court Rules.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: