SZFCE v Minister for Immigration and Citizenship
[2008] FCA 966
•12 May 2008
FEDERAL COURT OF AUSTRALIA
SZFCE v Minister for Immigration and Citizenship
[2008] FCA 966SZFCE and SZFCF v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 179 OF 2008
RARES J
12 MAY 2008
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 179 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZFCE
First AppellantSZFCF
Second AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
12 MAY 2008
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal is 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 179 OF 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZFCE
First AppellantSZFCF
Second AppellantAND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE:
12 MAY 2008
PLACE:
SYDNEY
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)
The appellants are mother and daughter. They are citizens of India who arrived in Australia on 17 June 2000 and applied for protection visas in late September 2000. On three separate occasions, the Refugee Review Tribunal has considered their application for review of the Minister’s delegate’s refusal on 20 October 2000, to grant them those visas. Two previous tribunal decisions were set aside, leading to the third decision being made on 28 July 2006 and handed down on 15 August 2006.
The Federal Magistrates Court rejected the daughter’s and the mother’s application for constitutional writ relief from the 2006 decision of the tribunal: SZFCE & Anor and Minister for Immigration [2008] FMCA 52. The mother did not file an appeal from that decision, but at the commencement of the hearing last week, the solicitor appearing for her and her daughter asked for the mother to be joined as an appellant. The Minister did not object to that course and I thus extended the time in which the mother could appeal and ordered that she be joined as an appellant on the existing notice of appeal. This morning, an amended notice of appeal has been filed in court to which I will return.
THE APPLICATION FOR A PROTECTION VISA
The daughter applied as the applicant for a protection visa and named her mother as a person included in the application. In her reasons for claiming to be a refugee, filed with her protection visa application in September 2000, the daughter said that she used to live with her mother, husband and brother’s family in Mumbai, where they owned a catering business which, she said, was prosperous until recently, when they started having problems with a political basis. She claimed that RSS supporters and BJP sympathisers attacked their Muslim community. She claimed that their property was burned down and their lives had been threatened, so that they had fled the country.
She claimed that if her mother and she were to go back to India when there was still trouble in their community, they would have been attacked and possibly killed, and thus requested protection for some time until the situation there improved. The daughter particularly claimed that the Bal Thackeray group of fundamentalists, as well as the RSS and BJP supporters were likely to cause her harm. In the original application signed by both mother and daughter on 22 September 2000, they ticked a circle indicating that they wished all notifications and correspondence to be sent to their postal address, which was the address of their then migration agent, Chris Muthu & Associates in Marrickville, a suburb of Sydney.
In her contemporaneous, but separate, application for a protection visa, the daughter responded to the marital status question by ticking, “married.” She left blank answers for “separated” and “divorced” and gave no suggestion that she had either of those latter statuses. The mother’s application was made as a member of the family unit of the daughter. It indicated that she was widowed and 57 years old.
THE DELEGATE’S DECISION
The delegate rejected the application. He noted that members of the BJP, RSS and other affiliated organisations had been implicated in incidents of violence and discrimination against Muslims and accepted that the daughter was a Muslim from Mumbai who may have owned a catering business. He found that the perpetrators of the arson to the business property were neither the government, nor an agency of the government, but RSS supporters and sympathisers of the BJP. He did not accept the assertion by the daughter and the mother that the acts or omissions of the BJP and RSS persons would be attributed to the ruling national democratic alliance.
He said that, having perused the entire departmental data bases, there was no evidence which indicated that the members of the Muslim community were subjected to persecution by the ruling authorities. Accordingly, he was not satisfied that the appellants would lack State protection and found that the daughter’s was claim not well founded. The delegate said that the daughter’s claims appeared to relate only to her own area of Mumbai. He said that there was no reason why she could not relocate to live in another part of India. He noted that the daughter had left India on an Indian passport obtained in her own name without any difficulties, indicating that she was of no adverse concern to Indian authorities. He was not satisfied that the daughter was a person to whom a protection obligation was owed by Australia and refused the application.
The mother had made no separate claims in her application and the fate of her application fell with her daughter’s. Both mother and daughter applied to the tribunal for a review of the delegate’s decision in November 2000. Mr Muthu was named as their authorised adviser in relation to their application. The form noted that the tribunal would send copies of all correspondence to the adviser. It also noted that it would send all documents to the appellants at the address they had given as their home address, which was different to that of the adviser. In their reasons for making the application, the appellants said that the decision-maker had asserted that Muslims in India did not have any problems, but that they had experienced religious riots and had lost their business and properties.
They claimed they feared being kidnapped, raped or killed. They said that the majority of the Hindu population turned violent and chased them out of the country. They asserted that they hoped the situation would change, so that they could go back to a safe country.
THE SIGNATURES ON THE APPLICATION FOR REVIEW FORM
In the signature section of the form used to apply to the tribunal for review, the same person appears to have signed both as applicant 1 and applicant 2. That signature bears no relationship to the signatures of either the mother or daughter on their applications for protection visa which was similar to their signatures in the photocopy passports in the appeal papers. All those signatures are plainly different to that on the application for review. I infer that the signature on the application for review form is that of Mr Muthu. Also on that form, above the daughter’s signature, there is a declaration that the applicant for review would inform the tribunal of any changes in their personal circumstances, including any change of address.
The form contained a printed declaration that the applicant understood that if she changed her address and did not inform the tribunal of the new address, the decision could be made in her absence. The form also recorded that where the application included more than one applicant, the first applicant undertook to inform each other applicant of the contents of any communication from the tribunal and if necessary, to reply to the tribunal for them. Above the mother’s signature was a declaration that she had authorised the tribunal to communicate with the contact person, her daughter, about the application.
THE 2006 TRIBUNAL PROCESS
The appellants changed addresses and advisors over the years. In 2006, the Full Court of this court, by consent, quashed the second decision of the tribunal and ordered again that the tribunal determine the application according to law. On 5 May 2006, the tribunal wrote to the daughter informing her that the application for review had been remitted for reconsideration. It asked her to inform her mother about the letter and said that any reply would be regarded as a joint response, unless the tribunal was advised otherwise.
On 18 May 2006 the tribunal wrote to the daughter inviting her to a hearing in accordance with s 425(1) of the Migration Act 1958 (Cth). The tribunal recited that it had considered the material before it in relation to her application and was unable to make a decision in her favour on that information alone. The hearing was set down for 14 June 2006. Again the tribunal wrote that the daughter should inform her mother about the letter and any reply would be regarded as a joint response, unless the tribunal was advised otherwise. The terms of the letter are grossly unsatisfactory for the purposes of complying with s 425 to the extent that it purports to invite a second person. First, it is addressed only to the daughter. Secondly, it commences by referring only to her name as the addressee of the letter. Thirdly, in the second paragraph under the hearing, “Hearing of the Tribunal” it says:
“We now invite you and any persons listed below to come to a hearing of the tribunal to give oral evidence and present arguments in support of your claims. You can also ask the tribunal to obtain oral evidence from another person or persons.” (emphasis added)
The letter then gave details of when the hearing was to be held, including a section with a heading, “Important information about your hearing” (my emphasis). The letter continued by referring to a response to a hearing invitation form that was attached, and asked the addressee to read it carefully and to complete the “Witnesses” part of the form if they wanted the tribunal to get oral evidence from another person. It then requested the provision to the tribunal of any further documents or written arguments which the applicant wanted the tribunal to consider, and asked that all questions on the form be answered and it be returned by 5 June 2006. The letter continued on the second page:
“You should inform:
[the mother]
about this letter, and any reply will be regarded as a joint response unless we are advised otherwise.”
As will appear, the Minister contends that the reference to the mother on the second page was to a “person listed below” as referred to in the second paragraph on the first page of the letter.
A new migration agent, Mr Nurul Huq, was named as the daughter’s authorised recipient when she returned the response to hearing invitation form to the tribunal on 4 June 2006. That response said that the daughter wished to come to a hearing. In reply to the question, whether if any other family member were included in her application, that person wanted a separate hearing, she said, “no.” She also said, “no” to the question whether she wanted the tribunal to take oral evidence from any witnesses. The only person whom the response to hearing form noted was to come to the hearing was the migration agent. In the space on the form under the words, “signed on behalf of, and with the consent of, all family members included in the application,” the signature space was left blank, other than being ticked.
The form was dated on the day it was faxed. An undated statement was given to the tribunal together with a letter from Mr Huq on 8 June 2006. The undated statement was headed as a statement by the daughter and her mother to support the protection visa application. However, it was signed by the daughter and written in first person by her, referring to her and “my mother’s claims and grounds.” In it, the daughter claimed that she was seeking refugee status on the basis of being a member of the minority Muslim community in a predominantly Hindu society. She asserted that her mother and she, being deserted and Muslim women, were afraid to go home. They said that they had previously been abused and there was every possibility of their becoming a target to be abused, discriminated against and sexually assaulted because of worsening circumstances in India for the minority Muslim group. She claimed that her brother and sister-in-law had been directly involved in a previous riot and she said she had been targeted by Hindu locals when they had found out her husband had left her and that she was alone and helpless. She said that Muslim women in her situation were targeted by the Hindu community. She said that she could not safely relocate to another part of India because the same or similar circumstances would arise.
The daughter also claimed that she could not support herself and her widowed mother if she did not relocate. She claimed that her brother was suffering from a disability and could not look after himself properly and that neighbouring Hindus had taken away the family’s property and destroyed their family home. She asserted that the Hindus had also taken over the catering business which her brother could not protect. She claimed to be sure she would be attacked, abused or even sexually assaulted.
On 8 June 2008, Mr Huq wrote to the tribunal making a submission on behalf of the daughter and attached the undated statement. In substance, the submission repeated the content of the undated statement which it referred to as the daughter’s statement of claims. Mr Huq’s letter did not put a separate submission on behalf of the mother.
THE FORM OF THE INVITATION TO THE 14 JUNE 2006 HEARING
The tribunal recorded in its decision record that the mother was unable to attend the hearing on 14 June 2006 and that a medical certificate had been provided to it, which stated that the mother had attended a doctor’s surgery on 12 June 2006 and that due to sinusitis she would be “unfit for work/school from 12-15 June 2006”. The tribunal recorded that the daughter stated at the hearing that she was happy to proceed without her mother being able to give evidence. There was no direct evidence before the tribunal or the trial judge that the mother had authorised Mr Huq or her daughter to receive on the mother’s behalf, any invitation to a hearing under s 425(1), were her mother otherwise entitled to receive such an invitation separately and apart from the invitation issued in the form that it was by the tribunal for the third hearing.
On 15 June 2006 the tribunal wrote to the daughter at Mr Huq’s address as authorised recipient, providing particulars of information which the tribunal said might be the reason or part of the reason for deciding that the daughter was not entitled to a protection visa in accordance with s 424A of the Act. By an administrative oversight the tribunal allowed too few days for a reply, and resent the letter in exactly the same terms on 28 June 2006. The letter of 15 June 2006 consisted of ten numbered paragraphs in which the tribunal identified issues it had with inconsistencies in or difficulties with the daughter’s evidence or independent country information. It is not necessary to detail those issues. The letter then set out why the information in the ten numbered paragraphs was considered relevant in ten further numbered paragraphs corresponding to the original numbers.
In essence, most of the paragraphs indicating relevance asserted that, because of inconsistencies, the tribunal might be able to conclude that the daughter had manufactured her story or fabricated her claim or otherwise might not be believed. It said that the inconsistencies could reflect adversely on her credibility generally. It also referred to independent country information which indicated that the daughter could relocate safely in India and that the Indian authorities were not unwilling or unable to protect her. The tribunal’s s 424A letters both invited the daughter’s comments on that information. Each letter told her that she should inform her mother about the letter and that any reply would be regarded as a joint response, unless the tribunal was advised otherwise.
On 27 June 2006 Mr Huq replied to the tribunal’s first s 424A letter in detail. He did not reply to the second letter because, I infer, he realised it was a formality and he had already given the substantial reply.
THE TRIBUNAL’S DECISION
Suffice to say that the tribunal concluded it was unable to accept any of the daughter’s claims. It found she was not a credible witness and gave considerable reasons for that view. It found that she was married and not within a class or social group of Muslim women who were separated from their husbands. The tribunal found that the daughter would not suffer persecution by Hindus as a married woman, would enjoy the meaningful protection of the Indian police and other security institutions in Mumbai and would have adequate State protection available to her which would not be declined by State authorities in India for any convention reason. It was unable to be satisfied that the daughter faced a real chance of persecution should she return to India or that she had a well-founded fear of persecution for a convention reason.
The appellants initially argued that the tribunal had failed to comply with s 424A because the particulars which it had provided did not, so they said, explain with adequate clarity why each of the ten numbered paragraphs was relevant to the review. This morning that argument was abandoned in the amended notice of appeal. I would have rejected it in any event since it was obvious from the terms of the numbered paragraph setting out relevance why each was relevant to the review.
Initially the appellants also argued that the tribunal had obtained independent country information pursuant to s 424(1) of the Act but that it did not have regard to it in making the decision. However, during the course of argument on the first hearing day, that argument was abandoned by the solicitor for the appellants and it too has not been included in the amended notice of appeal.
ISSUES ON THE APPEAL
The substantial grounds argued upon the amended notice of appeal are that the Federal Magistrates Court erred in failing to find that the tribunal’s 2006 decision did not involve a jurisdictional error because the tribunal:
(1)failed to comply with s 425 of the Act because it had not invited specifically the mother to a hearing;
(2)had not offered or granted an adjournment to the mother on the basis of her medical indisposition to attend on the day and occasion fixed for hearing.
WAS THE MOTHER INVITED TO THE 14 JUNE 2006 HEARING UNDER S 425(1) OF THE MIGRATION ACT 1958?
The solicitor for the appellants contended, as he had before the trial judge, that the mother had not been invited to a hearing under s 425(1) of the Act. He based this on the way in which the 2006 correspondence of the tribunal had been directed or addressed solely to the daughter. He pointed to the parts of the correspondence which asked the daughter to bring the letters to her mother’s attention.
Because of the contents of the appeal papers to which I have referred above, I was concerned initially about the consequence of the absence of a signature by the mother authorising anyone to receive correspondence from the tribunal on her behalf. The solicitor for the appellants had no authorities to support this argument on the first day of hearing and counsel for the Minister had not needed to prepare for it because, until the appeal was called on for hearing, only the daughter was a party to the appeal. I stood the matter over for further argument on that issue to today and directed the parties to file further submissions.
The mother accepted that the only basis upon which she had an entitlement to a review of the delegate’s 2000 decision was the curiously signed application for review form in which her and her daughter’s signatures appeared to be the same. I have inferred those signatures were, in fact, appended by Mr Muhta, their then migration agent. The mother accepted that he did so with her authority because she must have authorised whoever signed the form to sign it on her behalf in order to invoke the tribunal’s function of review. At no point in this protracted litigation has anyone asserted that that application, as filed, with the tribunal in late 2000 despite the oddity of the signatures on it, was not a valid application for review for the purposes of s 414(1) of the Act.
I find that the application for review form was signed with the authority of each of the applicants for review. It follows that the application for review form also conferred authority for the tribunal to communicate with the daughter about the application in respect of the mother. At an earlier hearing of the tribunal, the mother had attended and given evidence in her own right.
As I have noted, there is a very unfortunate lack of clarity in the form of invitation to hearing sent by the tribunal on 18 May 2006. One would hope that a person familiar with the English language and some idea of drafting clarity would attend immediately to reforming that document if it is still in use. It should list, by name, each person to whom the invitation is supposed to be addressed immediately on the letter where the invitation is given on the first page in the second paragraph. This form of letter is difficult enough to understand for someone who is not the addressee and who reads English. It must be Delphic for anyone who does not understand the English language.
The statutory provisions for notification of persons by the tribunal have changed over the years. The Minister accepted that the provisions governing this application were those in force in 2000 when the application for review was made. They did not include s 441G as it now is. The appellants argued that the letter of 18 May 2006 cannot be construed by itself, or in the circumstances, as an invitation to the mother to attend the hearing for the purposes of s 425. Both sides referred to the decision of Conti J in SZDLA v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 221 ALR 164, where he considered a differently worded invitation, which was itself actually addressed in its heading to each of the applicants for review. That invitation was in bold type in the heading of the letter. It stated to the recipient (SZDLA 221 ALR at 173-174 [30] (iii) and (iv)):
“Please note that you must tell all persons named above about this letter and, if they wish, reply to the tribunal for them.”
It is common ground that his Honour’s reference to s 441G as a source authorising such a letter was erroneous because that section did not apply at the time of that application for review: SZDLA 221 ALR at 176 [41]. The Minister had submitted successfully to the trial judge below that s 441G applied: SZFCE [2008] FMCA 52 at [10]-[11].
The appellants argued that one consequence of the tribunal’s failure to issue a separate or pellucidly clear invitation to the mother was that she lost the opportunity to ask for her own hearing or to appreciate that she was being invited to attend at all. They argued that no inferences could be drawn against the mother from the daughter’s submission of the medical certificate, the response to invitation for hearing form or the circumstances in which Mr Huq was acting for both of them. So, they said it could not be inferred that the 18 May 2006 letter was in fact an invitation to the mother for a hearing or would have been understood by her to be such an invitation.
In SZDLA 221 ALR at 176-178 [41]-[45] Conti J took the view that a letter which was addressed to the primary applicant for a protection visa, together with the members of that person’s family unit who were making claims, the success of which was dependent on the primary applicant’s success in obtaining a protection visa, were sufficiently invited by a letter to the primary applicant which referred to them. Obviously the form of the letter before his Honour was different to that which is before me. But he observed that it was not unreasonable to hold that a husband, wife and child bound together in their search for refuge (as implicitly, on the evidence, they were in that case), were properly invited to a hearing scheduled to consider their applications together by an invitation addressed to the same home address for all three persons. He said that that should be so, particularly in circumstances where the tribunal had been informed that the wife was nominated as the “contact” person for all relevant communications between the family members and the tribunal, and the wife there was the only member of the family who had made specific claims to the Minister for a protection visa on the basis of her well‑founded fear of persecution within the meaning of the Refugees’ Convention: SZDLA 221 ALR at 177 [44].
In the present case, s 53(8) of the Act in the form in which it was at the time of the application for protection visas provided:
“53(8)If, in accordance with the regulations, 2 or more non-citizens apply for visas together, notifications given to any of them about the application are taken to be given to each of them.”
Subsequently the previous s 53(8) has been reacted in s 52(3C). Pursuant to s 415(1) the tribunal may, for the purposes of the review of an RRT reviewable decision, such as the delegate’s 2000 decision, exercise all the powers and discretions that are conferred by the Act on the person who made the decision. I am of opinion that this authorised the tribunal to communicate with the appellants in accordance with the power conferred on the original decision maker by the then s 53(8): Applicant NAFF of 2002 v Minister of Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 9-10 [25]-[26] and 12 [33] per McHugh, Gummow, Callinan and Heydon JJ.
It is important to bear in mind that, in construing the requirement that an applicant be invited to appear before the tribunal to give evidence and present arguments relating to the issues arising in relation to a decision under review in accordance with s 425(1) of the Act, there will often be applicants who cannot do so. For example, they may be very young children who cannot speak or who cannot be expected to represent their own interests and, likewise, older people or people with injuries or disabilities which preclude them from being able to appear to give evidence or present arguments but who would, nonetheless, be part of the family unit of the primary applicant for review and whose fate would stand or fall with the primary applicant’s entitlement to a protection visa as determined by the tribunal.
The formality of writing letters, for example, to a baby cannot have been intended by the Parliament as being necessary in every case (see the old s 53(8) now s 52(3C)). The application for a review form, as completed on behalf of the mother and daughter, created an authorisation for the tribunal to communicate with the daughter about the mother’s case. The clarity of the letter of 18 May 2006 leaves, as I have said, very much to be desired. However, I am of opinion that it provided an invitation to the mother for her to attend at the hearing in accordance with s 425 in the context in which it was sent, together with the response to hearing invitation and in the absence of any evidence from the mother that she did not understand the form to work in this way.
Even if she had given such evidence, it seems to me that it is clear enough that the hearing to which her daughter was invited, and about which her daughter was required to inform her, was one to do with the essence of her (the mother’s) claim. So much also appears from the joint statement submitted to the tribunal with the Mr Huq’s letter of 8 June 2006, albeit that it was written by her daughter in the first person and referred to her mother in the third person. In addition, in the circumstances, in the absence of any evidence to the contrary, I infer that the response to hearing invitation form was completed with the knowledge of the mother and that she gave instructions for, and was content for it to be returned to the tribunal as indicating that she, as a family member included in the application for a protection visa, did not want a separate hearing and was not to give evidence. Likewise, I infer from her attendance to obtain a medical certificate and from its tender at the hearing that the mother was content for the daughter to represent them both at the hearing. The tribunal raised the question about the mother’s position and the daughter said that she was happy to proceed without her mother being able to give evidence.
In those particular circumstances, I am of opinion that the tribunal had sufficiently invited the mother to attend to give evidence. The mother knew she could have done so and she was content to allow the evidence of her daughter to be presented and the arguments to be given by her daughter and Mr Huq on her behalf.
In NAAF 221 CLR at 12 [34], McHugh, Gummow, Callinan and Heydon JJ noted that in some cases it may be necessary for disappointed applicants for review to file evidence about what steps they would have taken if the alleged breach of procedural fairness had not occurred. In that case, they held that the appellant’s failure to do so was not fatal because the tribunal never afforded him the opportunity to respond to questions it said it would ask but never did. Here, it would have been a simple matter for the mother to say that, had she received an invitation she would have attended, or she wished to apply for an adjournment of the hearing if what was sent was in fact intended as an invitation to a hearing for herself. Rather, the circumstances in which the medical certificate was provided to the tribunal suggest that the mother was conscious that she should provide an explanation to the tribunal for her non-attendance as opposed to using that occurrence as a basis for seeking an adjournment.
There is no evidence that the mother would have applied for an adjournment or sought an adjournment of the tribunal’s hearing. To the contrary, the medical certificate was presented to the tribunal to explain her absence, not to seek an adjournment. I am not satisfied that the tribunal failed to invite the mother.
In those circumstances, I am of opinion that the tribunal did not commit a jurisdictional error.
FAILURE TO GRANT AN ADJOURNMENT
The second ground of appeal now pressed is that the tribunal should have offered or granted an adjournment of the hearing to the mother. She did not ask for one and the daughter indicated that she was happy to proceed without one. The response to hearing form indicated that the mother did not wish to attend a hearing in any event.
I am of opinion that the tribunal did not have to take any further steps in relation to the mother in order to be able to fulfil its statutory function.
DISCRETION
Even if I were mistaken about the construction I have placed on the correspondence between the tribunal and the appellants and the other communications between them, I would not have allowed the appeal. If the mother did not receive an invitation to a hearing, her claim to a protection visa was made only as a member of her daughter’s family unit. In that sense, her claim was derivative. No useful result could ensue from the grant of relief desired by the mother because, even if she were correct that s 425(1) required her to have been invited individually to a hearing, her claim must have failed on the dismissal of her daughter’s claim. That would be so even if the mother had asked for an adjournment or a separate hearing. The daughter did not ask for an adjournment of her own hearing on 14 June 2006, and asked for it to proceed without her mother giving evidence. Thus the daughter authorised the tribunal to proceed with the determination of the daughter’s application. Had it been asked to adjourn to allow the mother to appear, the tribunal may have granted an adjournment and, indeed, is likely to have done so. But its failure to adjourn when it was not asked to do so is not a jurisdictional error. The tribunal was entitled to have proceeded as it did to determine the daughter’s claim adversely to her. Thus, a later hearing for the mother must have resulted in a refusal of any protection visa to her because she would have been unable to satisfy, as a member of the daughter’s family unit, the requirement of s 36(2)(a) that her daughter was entitled to a protection visa.
For those reasons, I would also have dismissed the appeal as being “futile”: SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at 618‑629 [29] Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
For these reasons, I would dismiss the appeal.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 25 June 2008
Solicitor for the Appellants: D Knaggs, Cross Law Counsel for the First Respondent: T Reilly Solicitor for the First Respondent: Sparke Helmore
Date of Hearing: 12 May 2008 Date of Judgment: 12 May 2008
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