SZDBI v Minister for Immigration - [2005] FMCA 426

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDBI v MINISTER FOR IMMIGRATION

[2005] FMCA 426

MIGRATION – RRT decision – low-caste Hindu from Kerala – claimed persecution by BJP due to relationship with higher caste woman – did not give information requested by Tribunal – no error in Tribunal not inviting to hearing – no failure to deal with claims – no irrationality – application dismissed.

Migration Act 1958 (Cth), ss.420, 422B, 424, 424(1), 424(2), 424(3), 424A(1), 424A(3)(a), 424B, 424C, 424C(1), 424C(1)(b), 425(1), 425(2), 425(2)(c), 483A, Part 8
Judiciary Act 1903 (Cth), s.39B

VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471
Win v Minister for Immigration and Multicultural Affairs (2001) 105 FCR 212
Re Minister for Immigration & Multicultural & Indigenous Affairs, Ex parte ApplicantsS134/2002 (2003) 211 CLR 441
Plaintiff S157/2002 v Commonwealth of Australia (2002) 211 CLR 476
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12
NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695
NABE v Minister for Immigration and Multicultural and Indigenous Affairs
(No 2) [2004] FCAFC 263
Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264

Applicant:

SZDBI

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG 807 of 2004

Judgment of:

Smith FM

Hearing date:

29 March 2005

Delivered at:

Sydney

Delivered on:

14 April 2005

REPRESENTATION

Counsel for the Applicant:

Mr R Turner

Solicitors for the Applicant:

Ray Turner

Counsel for the Respondent:

Mr G Kennett

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs in the sum of $5,300.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 807 of 2004

SZDBI

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application under s.483A of the Migration Act 1958 (Cth) in relation to a decision of the Refugee Review Tribunal dated 12 February 2004 and handed down on 5 March 2004. The Tribunal affirmed a decision of the delegate made on 21 November 2003 which refused an application for a protection visa. The applicant seeks the issue of a writ of certiorari to quash the Tribunal’s decision.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. Relevant to the present matter, that jurisdiction is its general judicial review jurisdiction under s.39B of the Judiciary Act 1903 (Cth) but subject to limitations under Part 8 of the Migration Act. As interpreted by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs, Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76‑7], and in subsequent cases, the relief sought by the applicant is available only if I am persuaded that the Tribunal’s decision is affected by jurisdictional error.

The applicant’s claims

The applicant arrived in Australia from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] FMCA 426
Decision Date: 14 April 2005

CaseChat Overview and Summary

The case of SZDBI versus the Minister for Immigration involved an applicant who was challenging a decision by the Minister to cancel his visa. The primary issue before the court was whether the Tribunal had acted lawfully and procedurally fair in making its decision to affirm the delegate's decision without offering the applicant a hearing. The applicant argued that he had not received proper notice of the Tribunal’s decision and that the failure to provide him with an opportunity to be heard constituted a breach of procedural fairness.

The court examined the provisions of the relevant legislation which required the Tribunal to invite the applicant to appear before it to give evidence and present arguments. However, the court noted that this requirement did not apply where the applicant was invited under a specific section to give additional information and did not provide it by the stipulated deadline. The Tribunal had correctly identified that the applicant had failed to respond to a request for additional information, which was crucial to his application. The court concluded that the Tribunal's decision to proceed without a hearing was appropriate given the lack of substantive information provided by the applicant.

Given the circumstances, the court found that the Tribunal had acted within its jurisdiction and had not breached any principles of procedural fairness. The application was dismissed, and the applicant was ordered to pay the respondent’s costs in the sum of $5,300.

Orders

Orders of the court

Application dismissed.

Applicant to pay the respondent’s costs in the sum of $5,300.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 15 January 2004, the Tribunal sent to the applicant at his home address and to his agent a letter which said:The Tribunal requests that you provide the following additional information.·Your detailed reasons for disagreeing with the decision under review;·The basis upon which you obtained a business visa to come to Australia, if you were working as a labourer at the time;·Details (dates, places etc) of your activities in campaigning for the rights of Eshava people·The cast to which “Sreedevi” belongs;·Details of all reports you made to police about attacks on you;·Your passport (the original, not a copy);·Any evidence you may have with you which would support your claims;·Any other matters you with the Tribunal to consider.This information is to be provided in writing and must be received at the Tribunal by 10 February 2004.If you have difficulty providing this information, please telephone Rebecca Willison on (02) 9951 5841 as soon as possible and before 10 February 2004. If you are calling from outside Sydney phone 1800 814 593. If you don’t speak English, please contact the Translating and Interpreting Service (TIS) on 131 450.IF YOU DO NOT PROVIDE THE ADDITIONAL INFORMATION BY 10 FEBRUARY 2004 THE TRIBUNAL MAY MAKE A DECISION ON REVIEW OF YOUR CASE WITHOUT FURTHER NOTICE. The Tribunal handed down a decision on 5 March 2004. In its reasons for affirming the delegate’s decision, the Tribunal recounts the claims made by the applicant in his visa application, and refers to its letter requesting more details. It explained why it decided to make a decision without inviting the applicant to a hearing:The Tribunal’s letter was sent by registered post to the applicant at his nominated mailing address (his residential address), and a copy was sent to his “authorised recipient” who is also authorised to act on his behalf in connection with the application for review. The letter of invitation advised the applicant that, if he did not provide the requested information and comments by 10 February 2004, the Tribunal might make a decision on the review of his case without further notice. As at the date of this decision, no response has been received to the Tribunal’s invitation and neither the letter of invitation nor the copy sent to his authorised recipient has been returned unclaimed to the Tribunal.The Act provides that the tribunal must invite an applicant to appear before it to give evidence and present arguments (s.425(1)). However, this does not apply where an applicant is invited under s.424 to give additional information and does not give that information before the time for giving it has passed. In those circumstances, the applicant is not entitled to appear before the Tribunal (ss.424C(1), 425(2)(c), 425(3)).Although the Tribunal is not compelled to proceed to a decision without offering an applicant a hearing in all cases where an applicant is invited under s.424 to give additional information and does not do so before the time for giving it has passed, the Tribunal considers that such a course of action is appropriate in this case. The applicant has provided little in the way of detail to support his claims and has failed to respond to a request that he provide additional information, including matters which go to the very heart of his application. The fact that he has failed to supply any of the requested information suggests to the Tribunal that an invitation to a hearing would, in all likelihood, prove fruitless. The matter has therefore been decided on the basis of the information before the Tribunal.

Ratio Decidendi

Legal Principle Established

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