SZLAL v Minister for Immigration and Citizenship

[2008] FCA 277

FEDERAL COURT OF AUSTRALIA

SZLAL v Minister for Immigration & Citizenship [2008] FCA 277

SZLAL AND SZLAM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 2034 OF 2007

JESSUP J
22 FEBRUARY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2034 OF 2007

BETWEEN:

SZLAL
First Applicant

SZLAM
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE OF ORDER:	22 FEBRUARY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applications be dismissed.

2.The applicants pay the costs of the respondent Minister.

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 2034 OF 2007

BETWEEN:

SZLAL
First Applicant

SZLAM
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JESSUP J
DATE:	22 FEBRUARY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 23 August 2007, acting pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), the Federal Magistrates Court of Australia dismissed applications for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), signed on 18 May 2007 and handed down on 19 June 2007. According to the reasons of the Federal Magistrate, the Tribunal affirmed an earlier decision of a delegate of the respondent Minister not to grant protection visas to the applicants. By a document filed in court on 12 October 2007, the applicants purported to apply for leave to appeal from the Federal Magistrate’s judgment. That purported application was about one month out of time, and if it were to be considered by the court, the applicants would require an extension of time pursuant to O 52 r 5(3) of the Federal Court Rules.

2. The applications for leave to appeal were listed before me today but neither of the applicants has attended, nor did they file written submissions as directed by the Deputy District Registrar on 3 January 2008.  I have been invited by Ms Baggett, who appears today for the respondent Minister, not simply to dismiss the applications because of the applicants’ failure to appear, but to consider the substance of the grounds which they had proposed to agitate in their intended appeal and to dismiss the applications because those grounds are without merit. 

3. In an affidavit said to be sworn by one of the applicants on 6 September 2007, the following is said by way of explanation of the grounds upon which the applicants would propose to rely:

   The FM failed to find that the tribunal’s decision was in breach of S424A of the Migration Act 1958 [Cth] and therefore fall under jurisdictional error. 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 424A(1).

   One of the points relied upon by the applicants before the Federal Magistrate did relate to s 424A of the Act. As to that, the Magistrate said:

   There is no substance to the asserted breach of s 424A of the Migration Act 1958 (Cth). The Tribunal decision plainly turned upon a lack of detail and the information provided by the applicant himself. It is now well established that no disclosure obligation arises pursuant to s 424A where a Tribunal decision turns upon an insufficiency of information provided by an applicant.

4. It needs hardly to be said that nothing has been put before me today to doubt the correctness of the Federal Magistrate’s observation as to the nature of the decision given by the Tribunal. It is also clear that his Honour’s observation as to the jurisprudence under s 424A is sound. In those circumstances, I have no hesitation in holding that the ground or grounds upon which the applicants would propose to rely if they were given leave to prosecute an appeal in this court would be quite devoid of merit.

5. In the circumstances, I shall dismiss the applications for leave to appeal, because they were not filed within the time limited by O 52 r 5(2) of the Rules of Court and because I am not satisfied that a dispensation should be given under subrule (3) of that rule.

I certify that the preceding five (5) 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 Applicant:	The applicants did not appear.
Counsel for the Respondent:	Ms E Baggett
Solicitor for the Respondent:	DLA Phillips Fox
Date of Hearing:	22 February 2008
Date of Judgment:	22 February 2008