SZIHT v Minister for Immigration and Multicultural Affairs

[2006] FCA 1485

FEDERAL COURT OF AUSTRALIA

SZIHT v Minister for Immigration & Multicultural Affairs
[2006] FCA 1485

SZIHT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1016 OF 2006

CONTI J
10 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1016 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIHT
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE OF ORDER:	8 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the first respondent’s costs of the application.

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 1016 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIHT
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	CONTI J
DATE:	10 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from the decision of Mowbray FM made on 28 April 2006, whereby his Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 3 January 2006 and handed down on 24 January 2006, which affirmed a decision of a delegate of the Minister made on 13 October 2005 refusing the applicant’s application for a protection (Class XA) visa. 

2. The applicant is a citizen of Pakistan who arrived in Australia on 13 August 2005.  In September 2005, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs, asserting thereby that he belonged to a political party called the Pakistan Muslim League (PML) and that he was being persecuted by the authorities.

3. The applicant did not acknowledge the Tribunal’s invitation to attend the hearing of his application for review of the delegate’s decision and did not appear before the Tribunal on the scheduled date.  The Tribunal proceeded to make a decision on the basis of the material before it, but due to the evidence being brief, vague and lacking in detail, the Tribunal found that it was unable to be satisfied on the evidence that the applicant had a well-founded fear of persecution.

4. On 9 February 2006, the applicant filed an application for judicial review in the Federal Magistrates Court.  The grounds in the application, inter alia, asserted the Tribunal made a jurisdictional error, failed to consider information and did not make findings in relation to the applicant’s claims.

5. On 28 April 2006, the Federal Magistrate dismissed the application pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules on the grounds that no arguable case for the relief claimed was thereby raised. His Honour observed that he was satisfied that the Tribunal had complied with its obligations under s 425 of the Migration Act 1958 (Cth) to invite the applicant to a hearing and that ‘as the applicant failed to attend, the Tribunal was entitled under s 426A to make a decision without taking any further action to allow the applicant to appear before it’. 

6. In support of the application for leave filed in the Federal Court on 25 May 2006, the applicant filed an affidavit and a draft notice of appeal in which the applicant submitted first, that the Federal Magistrate erred by not finding the Tribunal made a jurisdictional error and secondly, that the Tribunal made an error of law by not ‘properly investigating the [applicant’s] convention based persecution claims’, and thirdly that the Tribunal did not consult the relevant country information.  No such errors were identified in that written material satisfactorily or at all. 

7. The applicant also requested an extension of time on the basis of an assertion that although he had provided his migration agent with his papers, the same were not lodged with the Court in time for reasons unexplained. The name of the agent was not disclosed. 

8. The applicant did not attend the hearing of his application on 8 November 2006. The application and the applicant’s identification prefix were announced by the Court officer prior to the hearing. I have no reason to believe that the applicant was not properly informed of the hearing date.

9. In my opinion, the approach of the Federal Magistrate and his Honour’s conclusion were, in any event, not shown to be erroneous.

10. In all those circumstances the application was dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:        10 November 2006

Applicant did not appear
Solicitor for the Respondent:	Clayton Utz Lawyers
Date of Hearing:	8 November 2006
Date of Judgment:	10 November 2006