SZKJN v Minister for Immigration and Citizenship

[2007] FCA 1938

FEDERAL COURT OF AUSTRALIA

SZKJN v Minister for Immigration and Citizenship [2007] FCA 1938

MIGRATION – visa – protection visa – dismissal of appeal for non-appearance by appellant – tribunal found there was “no evidence” of certain matters – documents before tribunal contained such evidence – concern expressed by Court that tribunal either misunderstood its function, in that it did not consider what applicant supplied to be evidence, or did not deal with case put by appellant – manner of dealing with cases in which judicial officers express concern

Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb)(ii)

SZKJN v Minister for Immigration & Anor [2007] FMCA 1322

SZKJN v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1782 OF 2007

GRAY J
20 NOVEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1782 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKJN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAY J
DATE OF ORDER:	20 NOVEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of
            Australia Act 1976 (Cth).

2.        The appellant pay the first respondent’s costs of the appeal, fixed at $2,800.

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 1782 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKJN
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAY J
DATE:	20 NOVEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. When this appeal was called on for hearing at approximately 2.15 this afternoon, there was no appearance by or on behalf of the appellant.  Counsel appeared for the first respondent, the Minister for Immigration and Citizenship (“the Minister”).  The second respondent, the Refugee Review Tribunal (“the Tribunal”), entered a submitting appearance in the proceeding.  The appeal is from a judgment of the Federal Magistrates Court in SZKJN v Minister for Immigration & Anor [2007] FMCA 1322. The learned Federal Magistrate dismissed an application for judicial review of a decision of the Tribunal, affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, refusing to grant to the appellant a protection visa.

2. Counsel for the Minister informed me that, before I had come into the courtroom, at counsel’s request, the interpreter, who was present to assist the appellant, had made a telephone call to a telephone number believed to be that of the appellant.  Counsel for the Minister informed me, and the interpreter confirmed, that the appellant had indicated that he did not intend to attend the hearing of the appeal, because he believed that he would only lose it in any event.  I informed counsel for the Minister that I thought this was most unfortunate, because on my reading of the material, the appellant may well have had a point in his favour.  This proposition received some support from the fact that the Minister had filed out of time, and sought leave to file, a notice of contention, seeking to uphold the Tribunal’s decision on a basis other than that on which the Federal Magistrate upheld it.

3. It is unnecessary to go into detail as to what the issue might be.  The substance of it is that the Tribunal, in its reasons for decision, said that there was “no evidence” of certain matters when in fact such evidence had been supplied in documents submitted by the appellant.  It may be that, in reliance on that issue, the appellant could have established that the Federal Magistrates Court made an error, in that it should have held that there was jurisdictional error on the part of the Tribunal.  Either, as was suggested at one point by counsel for the Minister, the Tribunal member was attempting to distinguish between what the appellant said to the Tribunal and evidence from independent sources, or the Tribunal member had simply overlooked the fact that the evidence it said was missing was in fact present in the documents.  In the first case, it might be arguable that the Tribunal member misunderstood the statutory function of the Tribunal by only regarding as evidence statements other than those of the appellant or those the appellant made to the Tribunal.  In the second case, it may be that the evidence that in fact existed, but was referred to as nonexistent, revealed the possibility that the appellant did have a well-founded fear of persecution for his political opinion, and that the Tribunal might have so found if it had looked at the evidence fairly.  In that case, it could be said that the Tribunal did not deal with the case put by the appellant.

4. In either event, leaving aside questions of jurisdictional error, it seemed to me that the Tribunal had not dealt with the appellant’s case as fully as it should.  Even if the error that it made was an error within jurisdiction, it seemed to me the system had failed the appellant, because the Tribunal had not given its full attention to every possible issue that arose in the case.  For that reason, I requested counsel for the Minister to speak with someone at the highest possible level in the Department of Immigration and Citizenship (“the Department”), and to convey my concerns.  I also asked that another phone call be made to the appellant and that he be informed that it was not necessarily the case that he would lose his appeal, but that he would have to attend the Court in order to prosecute it if he were to succeed.

5. I adjourned the Court for some time.  When I resumed, counsel for the Minister reported to me that discussions about my concerns had been had with persons in the Department, up to director level.  Counsel for the Minister relayed instructions from the Department that there exists a process within the Department for the dissemination of the concerns of judicial officers about particular cases, and that the case might be considered on humanitarian or compassionate grounds.  I hope that this will be the case, because it does seem to me, jurisdictional error or not, that the appellant deserves a better hearing from the system than he has received.

6. I was also informed that the interpreter was successful in getting in touch with the appellant, and conveyed my message.  The appellant said that he would not be able to come to Court today to proceed with the appeal, and he agreed to supply to those acting for the Minister, and to the Court, a current address.  Mail that was sent to him earlier had been returned as being incorrectly addressed.

7. In all the circumstances, it seems to me that I should accede to the request by counsel for the Minister to dismiss the appeal pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), on the ground of failure of the appellant to attend a hearing relating to the appeal. Because such a dismissal does not involve a determination of the appeal against the appellant on the merits, the appellant has a better chance of applying to the Court to have the appeal reinstated than he would have had if the appeal had been determined against him on the merits, and the order dismissing it had been perfected.

8. Counsel for the Minister also invited me to make an order for costs against the appellant and to fix those costs at $2,800.  I see no reason why the order for costs should not be made, because it appears to be the appellant’s choice not to attend and prosecute this appeal.  The amount proposed seems to me to be a reasonable amount in the circumstances, and is in the vicinity of amounts that I understand to have been awarded for the Minister’s costs in similar cases.

9. Accordingly, I make the following orders:

   1. The appeal be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of
               Australia Act 1976 (Cth).

   2.        The appellant pay the first respondent’s costs of the appeal, fixed at $2,800.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

Associate:

Dated:        6 December 2007

Counsel for the Appellant:	The Appellant did not appear
Counsel for the Respondent:	Ms L Clegg
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	20 November 2007
Date of Judgment:	20 November 2007