SZHLZ v Minister for Immigration and Multicultural Affairs

[2006] FCA 1460

FEDERAL COURT OF AUSTRALIA

SZHLZ v Minister for Immigration & Multicultural Affairs [2006] FCA 1460

Migration Act 1958 (Cth) ss 424, 425

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009

SZHLZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1443 OF 2006

NICHOLSON J
9 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1443 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHLZ
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLSON  J
DATE OF ORDER:	9 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal dated 28 July 2006 be refused.

2.The applicant pay the first respondent’s costs of the application as agreed or, failing agreement, as taxed.

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 1443 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHLZ
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLSON  J
DATE:	9 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 10 July 2006 a Federal Magistrate summarily dismissed an application by the applicant for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) of 13 September 2005, handed down on 4 October 2005.  He did so on the ground that no reasonable cause of action was disclosed in the application.  The decision of the Tribunal affirmed the decision of a delegate of the first respondent of 2 June 2006 to refuse the applicant’s application for a protection (Class XA) visa.  The applicant now brings an application for leave to appeal against the judgment of the Federal Magistrate.

2. The applicant is a 35-year-old Pakistani national who arrived in Australia on 28 February 2005.  On 14 April 2005, he lodged his application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs.  In his application, the applicant claimed that he was a member of a political party called the Pakistan Muslim League (PML) and that as a result of this political association, he had been kidnapped and tortured by persons associated with a group called ‘MQM’, which, it is claimed, is supported by the current government of Pakistan.  He claimed that if he were to return to Pakistan, he would be gaoled or killed.

3. On 9 August 2006, the applicant was notified by the Tribunal that it had considered the material before it in relation to his application and was unable to make a decision in his favour based on that information alone.  Accordingly, the applicant was invited to attend to give oral evidence and present arguments in support of his claims at a hearing of the Tribunal to be held on 9 September 2005.  The applicant expressly declined the invitation to attend.

4. The decision of the Tribunal affirmed the earlier decision of the delegate.  According to the findings of the Federal Magistrate:

   ‘[The Tribunal] considered the applicant’s claims to be lacking in detail.  It was unable to be satisfied, on the evidence before it, that the applicant had a well founded fear of persecution within the meaning of the Convention.’

5. On 3 March 2006, the applicant filed an amended application in the Federal Magistrates Court and at the hearing of 10 July 2006, asserted a breach of s 424 of the Migration Act 1958 (Cth) (the Act). Additionally, the applicant relied on his own affidavit at the hearing which alleged that he did not understand the process upon which he was engaged and was suffering from a mental condition which affected his judgment. The Federal Magistrate found however that no evidence of any such medical condition was before the Tribunal and the Tribunal considered itself entitled to proceed in the applicant’s absence as he had expressly declined to attend that hearing.

6. It appears that at the hearing before the Federal Magistrate, only the first ground of the application was pursued, namely that there was an arguable issue in the case and that the Tribunal should have sought further information from the applicant pursuant to s 424 of the Act.

7. In considering this application, the Federal Magistrate referred to the fact that the Tribunal has power to seek additional information pursuant to s 424 but that such power is permissive rather than mandatory: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009. In addition, the Federal Magistrate referred to s 425 of the Act which requires the Tribunal to notify the applicant that it could not make a decision in his favour on the information before it and invited him to attend a hearing. The Federal Magistrate accordingly found that in the absence of any information that the applicant was suffering a medical disability or that he had further information that he regarded as important to put before the Tribunal, the Tribunal was under no obligation to undertake further inquiries pursuant to s 424 of the Act. Additionally, the applicant, having declined to provide any further information or attend the hearing before the Tribunal, could not claim to have been denied procedural fairness.

8. On that basis, the Federal Magistrate concluded that the application was doomed to fail and summarily dismissed the application.

9. The applicant filed an application for leave to appeal on 28 July 2006 on the grounds set out in the supporting affidavit filed on that date.  In the affidavit, the applicant restates his claims that he was a member of the PML, that he suffered persecution and torture, and that he is unable to return to Pakistan due to continued attack and persecution on PML Members.  In addition, the applicant claims that as a result of his fear of returning to Pakistan, he has developed ‘a mental depression’.  In support of this claim, the applicant has exhibited a report of Dr Ishrat Ali, Consultant Psychiatrist, of 25 June 2006.   The report of Dr Ali reads as follows:

   ‘To whom it may concern   25-7-06

   This is to certify that I saw Mr Sohail Aziz DOB 27-7-70 today.

   He presented with the following symptoms

   -     Depressed mood

   -     Sleep difficulty

   -     Tiredness

   -     Poor Concentration

   It looks that this has been going on for more than 6 months.  He also saw a GP who prescribed antidepressant [Name of medication] 20 mg.

   As a result of his depression, he was withdrawn and not able to attend his day to day activities.

   Diagnosis

   Adjustment Disorder with depression

   Recommendation

   He needs to treatment for his depression.
   I will also recommend that his case be considered sympathetically as depression affected his day to day activities.  As a result of that he could not follow his case properly and missed hearings.
     I. Ali’

   It will be observed that the evidence of Dr Ali does not relate to the applicant’s condition at the time of his non-attendance before the Tribunal.

10. On the hearing of this application the applicant made no further oral submissions aside from drawing attention to the report of Dr Ali.  Written submissions were filed on his behalf.

11. The written submissions contend that the Federal Magistrate ‘could have asked the applicant to give evidence under oath to …ascertain ... the nature of [his] depressive condition’.  The issue was whether any evidence of the applicant’s medical condition was made known to the Tribunal.  The evidence which the applicant subsequently produced was that of Dr Ali, which did not go to that issue.  It was not for the Federal Magistrate to search for evidence.  He did not make any error of law in not requiring the applicant additionally to testify on the issue.

12. The same submissions contend that as the merits have not been argued, a useful result would be achieved if the merits were now argued.  Those submissions place reliance also on the absence of bad faith by the applicant against the respondents.  Neither of those considerations establishes any error of law by the Tribunal or the Federal Magistrate.  The submissions ask that the absence of prejudice to the respondents or the Tribunal by the grant of leave should be taken into account.

13. There is a further submission that the Tribunal made an error of law when it found that the applicant’s claims were lacking in detail.  The error contended for is that the Tribunal failed to take into account relevant evidence, namely the applicant’s answers to questions 40, 41, 42 and 43 of his application.  However, regard to the paragraphs of the Tribunal’s reasoning on that issue discloses that the Tribunal had indeed had regard to what the applicant had stated but was pointing out issues which had not been clarified by his claims.  It was these which the Tribunal was unable to obtain further evidence on because the applicant declined to participate in the hearing. 

14. It is also submitted for the applicant that if this Court sees merit in the applicant’s case it should remit his application back to the Federal Magistrate to hear those merits.  However, this is an application for leave to appeal from a decision of the Federal Magistrate, who in turn was exercising a review jurisdiction.  The only circumstance where the application could be remitted by this Court is if it were established that an error of law had been made by the Tribunal and hence by the Federal Magistrate.  It is not the function of this court on this application to conjecture whether there might have been the merits in the applicant’s case had he in fact attended the Tribunal and given evidence in support.

15. The applicant has not been able to establish that the reasoning of the Federal Magistrate was arguably in error of law.  Consequently the application for leave to appeal must be refused. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:

Dated:        9 November 2006

The Applicant appeared in person
Counsel for the Respondents:	J Bird
Solicitor for the Respondents:	Phillips Fox Lawyers
Date of Hearing:	6 November 2006
Date of Judgment:	9 November 2006