SZBKQ v Minister for Immigration

[2005] FMCA 713

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBKQ & ANOR v MINISTER FOR IMMIGRATION [2005] FMCA 713

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Ukraine as a Roma.

PRACTICE AND PROCEDURE – Refusal of leave to amend application to add an additional ground where the proposed new ground is not reasonably arguable.

Migration Act 1958 (Cth), ss.424A, 425

NAMW v Minister for Immigration [2004] FCAFC 264
SAAP v Minister for Immigration [2005] HCA 24

First Applicant:

Second Applicant:

SZBKQ

SZGLH

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1870 of 2003

Judgment of: Driver FM

Hearing date: 26 May 2005

Delivered at: Sydney

Delivered on: 26 May 2005

REPRESENTATION

Solicitors for the Applicant: Mr M Jones
Michael Jones, solicitor

Counsel for the Respondent: Mr R Bromwich

Solicitors for the Respondent: Clayton Utz

INTERLOCUTORY ORDERS

1. The applicant husband is to be joined as the second applicant to the proceedings.

2. Leave sought to amend the application to add a further ground of review is refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1870 of 2003

SZBKQ

First Applicant

SZGLH

Second Applicant

And  

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. An issue has been raised before me by Mr Jones whether I should permit a further amendment of the amended application in these proceedings filed on 18 June 2004.  There are two proposed amendments.  The first seeks to join as a second applicant the first applicant's husband.  The second applicant was a party to the proceedings before the RRT.  I have no difficulty in ordering that he be joined as a second applicant.  I make that order. 

2. The other amendment sought by Mr Jones today does raise significant difficulties.  Mr Jones seeks to take advantage of the recent decision of the High Court in SAAP v Minister for Immigration [2005] HCA 24. The issue was raised by email directed to my associate this morning. Mr Jones says in that email that he wishes to add as a further ground of review the following:

   The Tribunal committed jurisdictional error of law by failing to notify the applicant, in accordance with s.424A(2) of the Migration Act 1958 (Cth) (“the Migration Act”), of information that it considered to be the reason, or part of the reason, for affirming the decision under review.

1. The particulars are that information was the RRT’s member's assessment of the applicant's physical appearance.  It was information that was specifically about the applicant, was not provided to the RRT by the applicant and was not non-disclosable information.  Accordingly, the RRT was required to notify the applicant in writing, giving particulars of the information why it was relevant and inviting her to comment.  The RRT failed to do so. 

2. In considering this issue it is necessary to have some regard to the basis on which the RRT made its decision.  The applicant had claimed persecution on the basis of her Roma ethnicity and had asserted that she was recognisable as a Roma on the basis of her physical appearance alone.  The presiding member took a different view.  He formed the view that the applicant did not have the physical appearance of a Roma person.  He said that while he was not personally an expert on Roma physiognomy he has encountered Roma in various countries when travelling and, in his experience, the applicant, who has pale, even pallid, skin and a generally European looking face, did not look like what the presiding member would regard as a typically Roma (court book, page 82).  The presiding member also had regard to country information relating to the persecution or harassment of Roma people in Ukraine which also bore on his assessment of the appearance typically of Roma people[1]. 

   [1] See in particular court book, pages 85, 87 and 88

3. It is clear that the central issue determining the outcome of the hearing before the RRT was the physical appearance of the applicant.  Because the presiding member formed the view that the applicant did not appear to be a Roma on the basis of her physical appearance alone the presiding member decided that the applicant could avoid the risk of persecution through relocation.

4. It is apparent to me from a reading of the RRT decision and reasons that the factors influencing the presiding member to this view were his own observation of the appearance of the applicant, his personal opinion based upon his own life experience and certain country information available to him concerning the typical physical appearance of Roma. As to the first, the physical appearance of the applicant could not really be described as information of the kind envisaged as requiring to be disclosed by s.424A(1) of the Migration Act. Even if it were, it is information coming from the applicant herself which falls within the purview of s.424A(3)(b) of the Migration Act. Neither, in my view, is the presiding member's personal opinion information requiring disclosure pursuant to ss.424A(1) and (2). It is simply an opinion formed by the presiding member in the light of the material before him. Such an opinion might require disclosure in order to comply with the fair hearing rule derived from s.425 of the Migration Act. There is no doubt that the opinion was disclosed at the hearing. It is in my view not information requiring disclosure in writing pursuant to s.424A of the Migration Act. That is the substance of the issue Mr Jones seeks to agitate in his proposed further amendment to the application.

5. Mr Bromwich submits the leave should be refused because the issue is not reasonably arguable.  I agree with him.  I will refuse the leave sought to amend the application. 

6. For completeness, I should also deal with the other information relied upon by the presiding member in the court book at the points I have indicated. That is information in the sense envisaged by s.424A of the Act. However, based upon the decision of the Full Federal Court in NAMW v Minister for Immigration [2004] FCAFC 264 it is information not required to be disclosed to an applicant in writing because it is not information about the applicant but is information just about a class of persons including the applicant[2].  I will therefore hear the application in the form in which it was filed on 18 June 2004.

   [2] See s.424A(3)(a) of the Migration Act

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate: 

Date:  1 June 2005