SZFDZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1124

FEDERAL COURT OF AUSTRALIA

SZFDZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1124

MIGRATION – appeal from Federal Magistrates Court – application for protection visa refused by Refugee Review Tribunal – procedural fairness – general country information – no error of law or principle

COSTS – general rule that costs follow the event – no special circumstances justifying departure from the general rule

SZFDZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 808 OF 2005

TAMBERLIN J
SYDNEY
12 AUGUST 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 808 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZFDZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	12 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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 808 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZFDZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	12 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Federal Magistrate Barnes (“the Federal Magistrate”) delivered on 3 May 2005, affirming a decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 April 1996 refusing a protection visa to the appellant. 

2. When the matter came on for hearing before me today, the appellant was represented by a member of the community to which she belongs who has put arguments in her favour in relation to this matter.

3. The issues which have been raised on behalf of the appellant are twofold, however, they primarily relate to the concept of procedural fairness.  The first is based largely on a letter written by the appellant to the Tribunal in relation to her attendance at the hearing before the Tribunal. She did not, in fact, attend at that hearing. The letter to the Tribunal is dated 1 March 1996 and indicates that the appellant is terrified by the thought of explaining herself to any kind of government board and, for the reasons set out in that letter, was not going to appear at the hearing.

4. There is a significant history in relation to the non-appearance of the appellant and the decisions made by the appellant or notified to the Tribunal on her behalf.  These were taken into account by the Tribunal in its decision in relation to the appellant’s claims and the evidence setting out the history and I will not repeat that history here. 

5. It is said on behalf of the appellant that because she could not attend, or did not want to attend, the Tribunal hearing because of the reasons set out in her letter of 1 March 1996, she was deprived of procedural fairness and, accordingly, the decisions of the Tribunal and the Federal Magistrate should be set aside and the matter remitted to the Tribunal for further consideration in accordance with law.

6. In my view, having regard to the detailed history of the matter and the statements made to the Tribunal in relation to the appearance or non-appearance of the appellant, I am satisfied that there was no breach of procedural fairness in this matter.  The appellant was given every opportunity to attend the Tribunal hearing. The Tribunal took into account the history of the matter, made attempts to contact the applicant subsequent to the scheduled hearing and did not deliver its judgment until some time after the date originally scheduled for the hearing at which the appellant did not attend.  Had the appellant attended the hearing, of course, she could have put her case to the Tribunal.

7. I have read the reasons for decision of the Tribunal and they refer, as the appellant’s representative has pointed out, to country information.  However, none of this country information refers specifically to the appellant's circumstances or to a class to which the appellant belongs.  In these circumstances, it was not incumbent on the Tribunal to give this general country information to the appellant at all.  In particular, the fact that she did not appear before the Tribunal must be taken into account.

8. The appellant appeared on the hearing before the learned Federal Magistrate.  The record indicates that she was represented by counsel and that a solicitor was also involved in relation to that appearance.

9. Many of the submissions advanced on behalf of the appellant in the proceedings before me, understandably perhaps because the appellant’s present representative is not a lawyer, relate primarily to the question of the merits of the decision of the Tribunal and the factual circumstances in relation to that decision.  These are not matters which this court has jurisdiction to review or revisit.  They are matters exclusively for the Tribunal to consider.

10. I have considered with some care the decision made by the Tribunal and the reasons for decision of the learned Federal Magistrate, in which the matter is thoroughly reviewed and each of the submissions advanced by experienced counsel in this area are weighed, examined and reasoned, and I can detect no error in the reasoning of either the Tribunal or the Federal Magistrate.

11. Accordingly, the order of the Court is that the appeal should be dismissed. 

12. The appellant’s representative has made a submission that, in the circumstances of this case, it would not be proper to award costs or that costs should not be awarded because of the lack of financial resources of the appellant and because of difficulties which she otherwise experiences.  However, the general rule, and the firm rule in these cases, although the Court possesses a wide discretion, is that costs should follow the event.  The fact that the costs may not, in fact, eventually be collected is not a relevant consideration for this purpose.  I can see no special circumstances that make this case different from any other in relation to costs and therefore I think that the respondent should have an order for costs against the appellant in respect of this appeal.

13. Accordingly, the order of the Court is that this appeal should 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 Tamberlin.

Associate:

Dated:            23 August 2005

The Appellant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	J A C Potts
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	12 August 2005
Date of Judgment:	12 August 2005