SZKTV v Minister for Immigration and Citizenship

[2008] FCA 275

FEDERAL COURT OF AUSTRALIA

SZKTV v Minister for Immigration & Citizenship [2008] FCA 275

SZKTV AND SZKTW v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1768 OF 2007

JESSUP J
20 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1768 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKTV
First Appellant

SZKTW
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	20 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeals be dismissed.

2.The appellants pay the costs of the first respondent fixed in the sum of $1,500.

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 1768 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZKTV
First Appellant

SZKTW
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	20 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These are appeals from a judgment of the Federal Magistrates Court of Australia given on 16 August 2007 dismissing applications for declarations and for writs of mandamus, certiorari and prohibition in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) signed on 17 May 2007 and handed down 31 May 2007.  In that decision the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant the appellants Protection (Class XA) Visas under the provisions of the Migration Act 1958 (Cth) (“the Act”).

2. The appellants, who are husband and wife, came to Australia from India on 4 January 2007.  The appellant husband applied for a protection visa.  The position of the appellant wife was that she is a dependant of her husband and would be entitled to a visa if he himself secured one.  That remains the position, and the appellant husband, who appeared alone in court today, explained to me that his wife understood that the appeal was being heard this morning, and that her claims were entirely dependent upon his.  I shall refer to the appellant husband as the appellant.

3. The appellant’s Notice of Appeal, filed on 31 August 2007, contains a single ground as follows:

   The FM failed to find that the tribunal’s decision was in breach of s 424A of the Migration Act 1958 (Cth) and therefore falls under jurisdictional error.

   (a)There was certain adverse information used by the Tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1).

   The appellant did not file any written submissions in this appeal, and made extremely brief oral submissions.  I asked him twice to identify what was the adverse information to which he refers in his ground of appeal but he did not do so. 

4. The position before the Tribunal was that the Tribunal notified the appellant that it was unable to make a decision which would be favourable to him on the papers alone.  The Tribunal invited him to appear before it to give oral evidence and to present arguments.  He did not do so.  The Tribunal decided the case on the papers, and expressed the following conclusion:

   Having considered both the issues and the claims made by the first named applicant individually and cumulatively, and based on the evidence currently before it, the Tribunal cannot be satisfied that the first named applicant suffered past persecution or that he faces a real chance of being persecuted now or in the reasonably foreseeable future if he returns to India in relation to his race, his religion, his nationality, political opinion or membership of a particular social group, or to an alleged, or imputed, race, religion, nationality, political opinion or membership particular social.  The Tribunal cannot be satisfied, on the evidence before it, that the first-named applicant has a well-founded fear of persecution.

5. The appellant sought judicial review in the Federal Magistrates Court.  The Federal Magistrate, having dealt systematically and, it seems, thoroughly with the appellant’s case, expressed the following conclusion:

   I am satisfied that all of the grounds in the Applicant’s application must fail…. I have read through the Tribunal decision myself independently of the Applicant’s amended application which I understand was not served on the lawyers for the Minister, and independently of the submissions on behalf of the Minister, both written and the oral submissions made today by Ms Sirtes of counsel. There is no arguable case of any jurisdictional error. The Tribunal decision is actually one of the better decisions that the Court has seen recently in that it is thorough, well structured and well set out and the Tribunal Member has approached the case in a constructive and logical manner. There is no jurisdictional error. The Tribunal decision is privative clause decision defined by sub-section 474(2) of the Migration Act.

   Specifically in relation to so much of the case as concerns s 424A of the Act, his Honour said:

   As to the claim of a failure to apply the “correct test” in accordance with s 424A(1) of the Migration Act it is quite clear that s 424A(1) does not apply. The reason for the decision was the inadequacy of the information provided. The Tribunal had made it clear in its invitation to a hearing on 28 March 2007 that the Tribunal had considered the material before it but was unable to make a favourable decision on that information alone.

6. I invited the appellant to address me on any mistake which the Federal Magistrate may have made.  He was unable to point to any such mistake.  For that reason, and because the appellant was unable to point to the adverse information to which his single ground of appeal refers, the present appeals must be dismissed.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.

Associate:
Dated:        6 March 2008

Counsel for the Appellants:	The first appellant appeared in person and on behalf of the second appellant
Counsel for the Respondent:	Ms Rayment
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	20 February 2008
Date of Judgment:	20 February 2008