SZHKL v Minister for Immigration and Citizenship

[2007] FCA 618

FEDERAL COURT OF AUSTRALIA

SZHKL v Minister for Immigration and Citizenship [2007] FCA 618

SZHKL v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 600 OF 2007

ALLSOP J
30 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 600 OF 2007

BETWEEN:

SZHKL
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	30 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be joined as a party.

2.The application for an extension of time in which to file and serve a notice of appeal be dismissed.

3.The applicant pay the first respondent’s 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 600 OF 2007

BETWEEN:

SZHKL
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE:	30 APRIL 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time by the applicant in which to file and serve a notice of appeal from orders made by the Federal Magistrates Court on 5 May 2006 on which day the application by the applicant, in relation to a decision of the Refugee Review Tribunal (the “Tribunal”), was dismissed. The applicant, almost a year later, filed an application for an extension of time. The affidavit upon which the applicant relies, and which is taken as read, was filed in Court on 3 April 2007. In that affidavit, it is stated by the applicant that he was not able to appeal to the Federal Court because he had no legal advise and did not know how to appeal. He also said in the affidavit he was severely depressed, and the only thing he knew he could do was to write to the Minister under s 417 and 48B of the Migration Act 1958 (Cth). As can be seen from the affidavit, the explanation of the delay is both brief and unsatisfactory.

2. The reasons of the Federal Magistrate deal with the complaints made before it about the decision of the Tribunal.  The general allegations made before the Federal Magistrates Court as to the error allegedly committed by it were referred to by the Federal Magistrate at [10] of his reasons, which were in the following terms:

   On 21 October 2005, the applicant filed an application for review under s.39B of the Judiciary Act setting out the following grounds:

   A.     I am a citizen of China who claim to have a well founded fear of persecution for reason of my religious beliefs under the Refugee Convention as amended by the Refugee protocol.

   B.     The Tribunal was in error of law those findings were to open its from my side fact and evidence.

   C.      The Tribunal faild to consider the Applicant case without the Applicant provide the evidence to the Tribunal and the Applicant to attend the hearing. The Tribunial make a such statement with conclusion decision without any reasonable and foundation in evidence. (copied without alteration or correction)

3. The substance of the analysis of the Federal Magistrate was whether there had been a failure to comply with s 424A of the Migration Act.  To appreciate whether or not there are any possible arguments in relation to that matter, it is necessary to turn to the reasons of the Tribunal.

4. The applicant is a citizen of the People’s Republic of China, who arrived in Australia in September 2000.  He lodged an application for a protection visa shortly after arrival.  His application was rejected by a delegate of the Minister and an application for review was filed on 29 November 2000. 

5. On 29 January 2001, the Tribunal wrote to the applicant, advising him that it could not make a decision favourable to him without a hearing. The Tribunal’s reasons then go on to recount the events that occurred after that letter was sent. The applicant advised that he wanted to give oral evidence but he did not appear at the hearing when it was scheduled. The Tribunal also recounts that it did not receive an explanation of this failure to attend. The Tribunal therefore proceeded in due course to deal with the applicant’s claims. The findings and reasons, at pages 9 and 10 of the Tribunal’s reasons set out its approach to the material before it. As the Federal Magistrate said in his reasons, the application of s 424A in circumstances where the applicant does not attend and does not provide independently material to the Tribunal has its difficulties, as was discussed in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCFCA 2 and in other cases. The fact that the only material before the Tribunal is material that the applicant put to the delegate or the department does not necessarily mean that every decision of the Tribunal made without the attendance of the appellant is necessarily one which requires communication under s 424A. Rather it depends upon how the Tribunal approaches the matter.

6. Here, I think it is clear, as the Tribunal found, that the reason for the decision and the only reason for the decision was the need for further information from the applicant so that the Tribunal might be satisfied about his claims. In those circumstances it is not the information which is a reason or part of the reason but the absence of material which might have been able to be provided to the Tribunal. I do not think it is arguable that the Tribunal failed to comply with s 424A and together with the lack of any satisfactory explanation for the 12 month delay, I do not think that there should be an extension of time. The application for an extension of time will be dismissed and the applicant to that application is to pay the respondent’s costs.

7. The Refugee Review Tribunal should also be joined as a party.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:        4 May 2007

The Applicant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	Ms G Broderick
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	30 April 2007
Date of Judgment:	30 April 2007