SZFDL v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1419

FEDERAL COURT OF AUSTRALIA

SZFDL v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1419

SZFDL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 1156 of 2005

MADGWICK J
SYDNEY
21 SEPTEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD  1156 OF 2005

BETWEEN:	SZFDL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT
AND:	REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	21 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The Refugee Review Tribunal be joined as a second respondent to the appeal.
2. The appeal be dismissed.
3. The appellant pay the respondent’s costs, assessed in the amount of $1,900.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD  1156 OF 2005

BETWEEN:	SZFDL APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS FIRST RESPONDENT
AND:	REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	MADGWICK J
DATE:	21 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of the Federal Magistrates Court given by Federal Magistrate Scarlett on 23 June 2005.  By that decision, his Honour dismissed the appellant's application for judicial review of an adverse decision of the Refugee Review Tribunal (‘Tribunal’). 

2. The Tribunal made its decision after a hearing at which the appellant gave evidence.  His case was that he was a political refugee, and that he was a member of an organisation known as the New Leaders Club, which supported democratic and non-communist development for Mongolia, his native land.  He claimed to fear harm from the Communist authorities of Mongolia known as the Mongolian People’s Revolutionary Party (‘MPRP’).  The Tribunal disbelieved the appellant for reasons it gave and considered that he was not at risk of any harm from the Mongolian authorities if returned there.

3. The application for review in the Federal Magistrates Court suggested first, that there was no evidence before the Tribunal to permit it to determine whether he had a well-founded fear of persecution; and secondly, that the Tribunal had failed to consider:

   ‘Some important information on political situation in Mongolia available to it’  (solecisms preserved)

4. His Honour found that the appellant had been given every opportunity to put before the Tribunal what he wanted to put and that the substance of ‘country information’ relied on by the Tribunal was put to the appellant so that he could comment on it or refute it.  There was no indication that the Tribunal had failed to consider material.  His Honour considered there was no jurisdictional error and accordingly dismissed the appellant's application. 

5. The notice of appeal, insofar as it is comprehensible, asserts a denial of procedural fairness in two respects.  Firstly, it is said ‘the Tribunal was influenced by the contradictory (DFAT) information’.  Secondly, it is said that the appellant was not provided with an opportunity to comment on the materials which the Tribunal relied on in its decision. 

6. The first aspect appears to misconceive the nature of what is necessary to establish a denial of procedural fairness and simply amounts to a complaint about the fact that material which did not support the appellant’s version of affairs was relied on by the Tribunal.  That does not suggest any jurisdictional error. 

7. The Tribunal was not required to give the “country information” to the appellant in writing under s 424A of the Migration Act 1958 (Cth) (‘the Act’) because it fell within the exception provided by subs (3) of that section. In any case, while it is legally irrelevant, in the light of s 422B of the Act, the Tribunal did in fact give the appellant an opportunity to respond to the country information.

8. The material before me suggests no error on the part of the learned Federal Magistrate in dealing with the material before him, nor that, insofar as any other ground is now raised, there is any substance in it.

9. The appeal will be dismissed with costs, assessed in the sum of $1,900.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             6 October 2005

Solicitor for the Applicant:	The appellant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	21 September 2005
Date of Judgment:	21 September 2005