SZFBL v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 204

FEDERAL COURT OF AUSTRALIA

SZFBL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 204

Migration Act 1958 (Cth), s 424A

SZFBL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 2452 OF 2005

SACKVILLE J
13 MARCH 2006

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2452 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFBL
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

SACKVILLE J

DATE OF ORDER:

13 MARCH 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed, with 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 2452 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZFBL
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	SACKVILLE J
DATE:	13 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of the Federal Magistrates Court given on 21 November 2005.  The Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘RRT’) handed down on 26 October 2004.  The RRT had affirmed a decision of a delegate of the first respondent (‘the Minister’) which had refused to grant protection visas to the appellant and his then wife. 

2. The odd aspect of the present case is that the only substantive claims in support of an application for a protection visa were made by the appellant’s wife and not by the appellant himself.  Both the delegate and the RRT dealt with the appellant’s entitlements as secondary to those of his wife. 

3. When the application before the Magistrates Court was set down for hearing, only the appellant appeared.  The appellant informed the Court that he and his wife had divorced and that she had left Australia some three months previously.  There was also documentary evidence before the Court that the wife had left the country.

4. Both the appellant and his then wife were named as applicants in the proceedings in the Magistrates Court.  The Magistrate decided to proceed with the hearing in the absence of the appellant’s former wife.  The Magistrate pointed out to the appellant that he would need to demonstrate jurisdictional error on the part of the RRT in relation to his former wife’s claims before any relief could be granted.

5. The learned Magistrate observed that the appellant did not advance any argument challenging the decision of the RRT.  The substance of the RRT’s decision was that it did not accept that the appellant’s former wife faced any harm in Mongolia, her country of citizenship, by reason of her political opinion.  The RRT reached its conclusion essentially on the basis of country information which showed that in June 2004 freely contested elections had taken place in that country and that a large number of political parties had participated in the democratic process.

6. The notice of appeal filed by the appellant identifies only one ground of appeal, namely, that the Magistrate should have concluded that the RRT had fallen into error:

   ‘in failing to consider whether I have a well-founded fear of persecution for the reason of my political opinion’.

7. There is no substance to this ground.  The appellant himself made no claim to the RRT that he feared persecution in Mongolia by reason of his political opinions or for any other reason within the Convention relating to the Status of Refugees (‘the Convention’).  Indeed, the original application for a protection visa was made solely by the appellant’s former wife.  The appellant himself merely completed Form D in his capacity as ‘a member of the family unit who does NOT have their own claims to be a refugee, but is included in this application’. 

8. The RRT’s reasons for decision record that no Convention claims were made by or on behalf of the appellant. Accordingly, the RRT concluded that the fate of his application depended upon the outcome of his former wife’s application.  Not only has no error been shown in that conclusion, but there was no material before the RRT that would have enabled it to reach any other conclusion.

9. The appellant has not suggested that the Magistrate should have concluded that the RRT fell into error in considering the appellant’s former wife’s claims.  In any event, I can see no basis for suggesting that the RRT committed any jurisdictional error in this respect.

10. I should mention that Mr Mantziaris, who appeared for the Minister, quite properly drew my attention to s 424A of the Migration Act 1958 (Cth). He pointed out that the RRT, in its reasons, had quoted a short extract from the wife’s visa application. The extract was to the effect that she hoped that forthcoming elections in Mongolia would give her an opportunity to return to that country and to continue her work as a law teacher.

11. As Mr Mantziaris submitted, however, the RRT’s use of that material without giving the wife particulars of it beforehand, did not constitute a breach of s 424A(1) of the Migration Act. This is so because the subsection does not apply to information that ‘the applicant gave for the purposes of the application [to the RRT]’: s 424A(3)(b). The quotation included by the RRT in its reasons came from a statement attached to the wife’s visa application. That statement was also attached to her application to the RRT seeking review of the delegate’s decision. It was therefore given to the RRT for the purposes of her application and thus falls within the exception provided for in s 424A(3)(b).

12. There is therefore no need to consider a further submission made by Mr Mantziaris that in any event it would be futile to grant relief to the appellant, who has never made any application for a protection visa in his own right.

13. The appeal must be dismissed, with costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

Associate:

Dated:  13 March 2006

The appellant appeared in person
Counsel for the Respondent:	Mr C Mantziaris
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	10 March 2006
Date of Judgment:	13 March 2006