SZBZK v Minister for Immigration and Multicultural Affairs

[2006] FCA 510

FEDERAL COURT OF AUSTRALIA

SZBZK v Minister for Immigration and Multicultural Affairs [2006] FCA 510

MIGRATION – no point of principle

SZBZK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 151 OF 2006

MOORE J
5 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 151 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBZK
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

5 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the first respondent's costs.

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 151 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBZK
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	MOORE J
DATE:	5 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate of 13 January 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"): SZBZK v Minister for Immigration and Anor (No 2) [2006] FMCA 33. The Tribunal handed down its decision on 30 October 2003 affirming the decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refusing to grant a protection visa. Also on 13 January 2006, the Federal Magistrate dismissed an application by the appellant for an adjournment to seek legal advice: see SZBZK v Minister for Immigration and Anor [2006] FMCA 32.

2. The appellant is a national of Chile who claimed to have a well-founded fear of persecution based on both his sexuality and his political opinion as a member of the Communist party.  The appellant claimed that he had been subjected to violence, detention and arrest in Chile and that he might have difficulty in obtaining work if he were to return.  The Tribunal accepted most of the appellant's account of his experiences in Chile.  However, it did not accept, in the circumstances, that the appellant had a well-founded fear or persecution if he were to return to Chile.

3. In the Federal Magistrates Court proceedings, several grounds were raised.  The notice of appeal, which was filed 2 February 2006, contained three themes which can be treated as grounds of appeal.  Firstly, there was a complaint about the costs order made by the Federal Magistrate, whereby the appellant was ordered to pay the first respondent's costs fixed in the sum of $5000.  Secondly, the appellant complained that the Federal Magistrate had refused to adjourn the hearing of the application in that Court.  Thirdly, the appellant claimed that the Federal Magistrate had erred in not identifying error in the Tribunal's decision, having regard to the way the Tribunal dealt with the independent country information provided by the appellant.  I deal with each of these matters in turn.

4. In relation to the first ground, the appellant was unsuccessful in the proceedings before the Federal Magistrate, and in the ordinary course, would therefore be obliged to pay the first respondent's costs.  The appellant stated in support of this ground that he did not have legal representation to assist him in the Court below and that his financial difficulties prevented him from obtaining legal representation.  Nothing has been put in argument to suggest that the Federal Magistrate erred in the exercise of the discretionary power to order costs.  As to the quantification of those costs, I have been informed by the solicitor for the first respondent, and I accept, that at the relevant time, an order in the amount awarded was within the range of costs then being fixed by the Federal Magistrates Court for such matters.  Indeed, the range is now reflected in schedule of costs in the Federal Magistrates Court Rules 2001 (Cth) (see Schedule 1 to the Rules), although those amendments do not apply as such in this case which was decided before the provision was inserted.

5. In relation to the Federal Magistrate's decision to refuse an adjournment, the appellant again stressed that he had no legal representation in the Court below.  The appellant claimed before the Federal Magistrate that he had recently contacted a possible source of legal advice through an association.  The first respondent had objected to any adjournment on the basis that the appellant had already had sufficient time to obtain legal advice.  Indeed, the Court book had been provided to the appellant and his panel legal advisor over two years earlier.  The Federal Magistrate accepted that allowing the adjournment would merely add to what was already a very considerable delay and noted that the association through which he claimed he had been offered help could have been found a few days before the hearing by a diligent search.There was no error attending the Federal Magistrate's exercise of the discretionary power to refuse an adjournment in those circumstances.  It was not a case where there was some real prospect that the appellant would imminently be legally represented.  Indeed, it appears to that the appellant had sought legal representation before the hearing from a variety of sources including Legal Aid and some form of pro bono assistance, but had been unsuccessful.

6. Finally, there is the matter of the Tribunal's evaluation of the independent country information.  In considering this ground, the Federal Magistrate pointed to the fact that the appellant had succeeded in persuading the Tribunal that many of his claims were true.  However, his Honour also pointed out that, ultimately, it was a matter for the Tribunal to place what weight it thought appropriate on the independent country information concerning whether the appellant had a well-founded fear of persecution were he to return to Chile, notwithstanding that it accepted the basis elements of his claim.  I am not satisfied that the Federal Magistrate erred in so concluding.

7. The appeal is dismissed.  The appellant should pay the first respondent's costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:            31 May 2006

The Appellant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 May 2006
Date of Judgment:	5 May 2006