SZJOL v Minister for Immigration and Citizenship

[2007] FCA 1881

FEDERAL COURT OF AUSTRALIA

SZJOL v Minister for Immigration and Citizenship [2007] FCA 1881

SZJOL AND SZJOM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1718 OF 2007

SPENDER J
19 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1718 OF 2007

BETWEEN:

SZJOL
First Applicant

SZJOM
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	19 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Both applications be dismissed with costs, to be taxed if not agreed.

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 1718 OF 2007

BETWEEN:

SZJOL
First Applicant

SZJOM
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE:	19 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I will dismiss each application for leave to appeal in these two matters for want of the applicants to appear.  I am satisfied that each of the applicants were notified of the time and date of the hearing of these applications. 

2. The applicants are husband and wife, citizens of India, who arrived in Australia on 26 February 2006. 

3. On 27 March 2006, the first applicant, the husband, lodged an application for a protection visa.   A delegate of the first respondent refused the application for a protection visa on 28 April 2006. 

4. On 26 May 2006 the applicant applied to the Refugee Review Tribunal (the Tribunal)  for a review of that decision. 

5. The first applicant is a businessman of 30 or 31 years of age.  His wife, who does not make her own claim under the Refugee Convention, is some six years younger.  The male applicant, a Hindu Indian national, made claims that he was in conflict with the local branch of the Bharati Yahata Party who attacked him and threatened to kill him.  His shop was burnt by slum dwellers, money lenders harassed him, and the police were of no help.

6. The Tribunal was not satisfied that the applicant had any political position and found that there was no real chance of the applicant suffering harm amounting to persecution for reasons of his political opinion. 

7. The Federal Magistrate originally dismissed the application for review because of the applicants’ non-appearance.  That dismissal was upheld at a second hearing as no reasonable explanation had been offered.  The Federal Magistrate concluded that there was no utility in any reinstatement of the application, and in any event, considered that there was no jurisdictional error, nor any bias in the proceeding by the Tribunal.

8. In the application to set aside the decision of Emmett FM of 26 June 2007, the applicant claimed that he was sick and unable to attend the hearing at the scheduled date.  The applicant asserts that a medical certificate was faxed prior to the hearing, but Emmett FM did not consider that the certificate provided a basis for an adjournment, and her Honour dismissed the application.

9. On 31 July 2007, the applicant did appear before the Federal Magistrate who considered two aspects of his application: the reasonableness of the explanation for non-appearance on 26 June 2007, and whether there was any utility in setting aside the order made on that day dismissing the proceedings. 

10. Her Honour found that no reasonable or arguable case was disclosed in the amended application and that there was no jurisdictional error affecting the decision of the Tribunal. 

11. In this case the grounds of appeal are said to be that the Federal Magistrate failed to find the Tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) (the Act) and therefore it constituted jurisdictional error.

12. Further it was said that there was certain adverse information used by the Tribunal to affirm a decision under review which it failed to disclose to the applicant in accordance with s 424A(1) of the Act.

13. The documents lodged by the male applicant seek leave to appeal. The grounds in the attached affidavit are simply that the Federal Magistrate failed to find the Tribunal’s decision was in breach of s 424A of the Act, and there was certain unparticularised adverse information used by the Tribunal to affirm the decision under review. The Tribunal, the applicant contends, did not disclose the information in accordance with s 424A(1) of the Act.

14. As earlier indicated, neither applicant appeared when the matter was called on and the proceedings will be dismissed on that basis.  However, I have considered the entirety of the material and indicate that on the merits of the application for leave, there is nothing to indicate that on a proper application of the tests for leave to appeal, set out in Decor Corporation Pty Limited v Dart (1991) 33 FCR 397 at 398-399, either of the requirements for leave to appeal are made out in this case.

15. In my opinion, the proposed appeal has no prospect of success.  It does not identify any error in the decision of the Federal Magistrate, but rather seeks to raise a ground of review in relation to the Tribunal’s decision which was not raised at any stage in the application before the Federal Magistrates Court. 

16. For these reasons also, the application for leave to appeal would have been refused with costs.

17. Each application for leave to appeal is dismissed with costs, to be taxed if not agreed.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:        28 November 2007

No appearance by the Applicants:
Solicitor for the First Respondent:	Australian Government Solicitor
Date of Hearing:	19 November 2007
Date of Judgment:	19 November 2007