SZLJR v Minister for Immigration and Citizenship

[2008] FCA 751

FEDERAL COURT OF AUSTRALIA

SZLJR v Minister for Immigration and Citizenship [2008] FCA 751

SZLJR and SZLJS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 183 OF 2008

TAMBERLIN J
7 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 183 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLJR
First Appellant

SZLJS
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	7 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed

2.The appellants pay the respondents costs in a sum fixed at $1,600.00

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 183 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZLJR
First Appellant

SZLJS
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TAMBERLIN J
DATE:	7 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a judgment of Smith FM refusing an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) which was made on 15 August 2007 and published on 4 September 2007.  The Notice of Appeal has two grounds.  The first is that the Federal Magistrate failed to hold that the Tribunal made a jurisdictional error by failing to assess the applicant’s fear of harm and misapplied the law and it failed to assess the cumulative effects of separate incidents related to his claim for a protection visa. 

2. When the matter came on for hearing before me today, the appellants appeared with an interpreter but without any legal assistance and did not deal in anyway with this ground of appeal.  However, an outline of submissions with the appellants’ signatures had been filed.  Having considered the decision of the Tribunal, I am not persuaded that this ground of appeal can be made out.  Due to the detailed consideration given by the Tribunal to this issue, including setting out the claims of evidence of the appellants and making findings and giving reasons, I am satisfied that regard was given to the whole of the evidence before the Tribunal when it reached its conclusion.

3. The second ground of appeal relates to an alleged bias of the Federal Magistrate.  There is no matter pointed to by the appellants which supports any suggestion of bias which lead to a misunderstanding of any oral or written evidence.  Indeed, there is simply no trace of any evidence indicating any bias at all in this matter. 

4. The other matter which was canvassed before the Federal Magistrate was a contention that, in substance, there was a denial of natural justice or procedural fairness because the appellants did not appear before the Tribunal.  There were two opportunities given to the appellants to appear: the first was on 2 July 2007 and the second on 24 July 2007.  On the first occasion an extremely brief statement (dated 29 June 2007) was furnished to the Tribunal that the appellants were unable to attend due to illness.  As a consequence of this, the hearing date was rescheduled for 24 July 2007, and on that occasion the appellant simply did not appear. 

5. A case note (dated 13 August 2007) was put before me where the appellants stated that the first appellant did not attend the hearing on 24 July 2007, and did not contact the Tribunal, because he was too unwell to do so.  He asked for a further hearing before the Tribunal and stated on 13 August 2007 that he would forward a facsimile to the Tribunal explaining why he did not attend the hearing.  Nothing was received by the Tribunal prior to the publication of the reasons on 4 September 2007.

6. In these circumstances, I do not think it is possible to make out any claim that there has been a failure to provide procedural fairness.  I have also considered the findings and reasons of the Tribunal.  On the material before it, the Tribunal found that the claims were lacking in detail and were generally no more than bare assertions.  The Tribunal was not satisfied that the first appellant was active in a political party, as claimed, or that he was harassed or attacked by members of his own party or by other Hindus. 

7. The finding of the Tribunal was a question of fact which is exclusively within its jurisdiction.  In those circumstances, the Court has no means by which it can interfere with the Tribunal’s decision.  Because there is no error demonstrated in either the decision of the Federal Magistrate, or of the Tribunal, this appeal must dismissed.

8. The respondents applied for a costs order to be entered in a lump sum.  I think it appropriate, in order to save further expense and efficiently dispose of this matter, that there be an order for costs in a lump sum of $1,600.00.

I certify that the preceding eight(8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:       22 May 2008

Counsel for the Appellants:	The applicants appeared in person
Counsel for the Respondents:	Mr M. Snell
Solicitor for the Respondents:	Sparke Helmore

Date of Hearing:	7 May 2008
Date of Judgment:	7 May 2008