SZMBN v Minister for Immigration and Citizenship

[2008] FCA 1383

FEDERAL COURT OF AUSTRALIA

SZMBN v Minister for Immigration & Citizenship [2008] FCA 1383

Federal Magistrates Court Rules2001 (Cth), r 44.12

Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 applied
SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 cited
SZMBN v Minister for Immigration [2008] FMCA 503 considered

SZMBN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1060 OF 2008

BENNETT J
25 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1060 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMBN
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	25 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is dismissed.

2.The applicant to pay the first respondent’s costs in the amount of $1000.

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 1060 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZMBN
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	25 AUGUST 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant is a citizen of India. He arrived in Australia on 30 March 2007 and applied for a protection visa on 14 May 2007. The applicant’s claim for a protection visa was based on a fear of persecution on the basis of his homosexuality. The applicant’s application for a protection visa was refused by a delegate of the Minister for Immigration and Citizenship. On an application for review, the Refugee Review Tribunal affirmed the delegate’s decision. An application for review of the Tribunal’s decision was dismissed by Driver FM (SZMBN v Minister for Immigration [2008] FMCA 503).

   THE HEARING BEFORE THE TRIBUNAL

2. The applicant’s difficulties in relation to his hearing before the Tribunal arose because he did not receive, or did not receive in time, notification from the Tribunal and the invitation to appear at the hearing.  There is no dispute that the Tribunal notified the applicant’s authorised recipient, his migration agent, of the hearing.  However, it would seem that the migration agent did not, in turn, notify the applicant of the opportunity to attend.  According to the decision of Driver FM, it may be that the applicant himself received a copy of the hearing invitation in the mail at his home address but, because he was working away from home at the time, it did not come to his attention until after the opportunity to attend the hearing had passed. 

3. In any event, the applicant did not attend the hearing before the Tribunal.  Given the lack of detail in the applicant’s claims and without the opportunity to test the truthfulness of those claims at the hearing, the Tribunal found that it did not have sufficient evidence and was not prepared simply to accept the applicant’s claims.  It followed that the Tribunal was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.

   THE DECISION OF THE FEDERAL MAGISTRATE

4. In the proceedings before Driver FM, the applicant blamed his migration agent for the lost opportunity to attend the Tribunal hearing.  In particular, the applicant submitted that his migration agent had not contacted him to tell him of the Tribunal hearing.

5. Federal Magistrate Driver noted (at [10]) that the application before him made ‘bald assertions of legal error, with no particulars.  In the absence of particulars, the assertions are meaningless’.  Nevertheless, his Honour considered the matter in some detail.

6. His Honour found, in essence, that there was no evidence of fraud by the migration agent (at [11]). The applicant conceded that the migration agent had not prevented him from attending the Tribunal hearing. There was no evidence that the migration agent had actively misled the Tribunal in relation to anything relevant to the hearing. His Honour concluded that it was simply a case of a lack of communication between an agent and his client (at [11]). Accordingly, his Honour further concluded that there was no arguable case of jurisdictional error by the Tribunal and, at a hearing to show cause under rule 44.12 of the Federal Magistrates Court Rules2001 (Cth), his Honour dismissed the application for review of the Tribunal hearing (at [11] and [12]).

7. There was a question before his Honour as to whether or not the applicant required an extension of time for the filing of his application but his Honour disregarded any time limitations.

   THE APPLICATION FOR LEAVE TO APPEAL

8. The applicant applies for leave to appeal from Driver FM’s decision.  That application was filed out of time.  The Minister does not take issue with that fact and I will consider the merits of the application and whether leave to appeal should be granted under the principles in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397.

9. The application for leave to appeal annexes an affidavit and a draft notice of appeal.  Looking at the grounds of appeal in substance, they contain assertions without particulars.  There is no explanation of what the asserted error on the part of the Federal Magistrate is said to be.  One ground of appeal refers to jurisdictional error in the decision of the delegate.  I take that to mean jurisdictional error on the part of the Tribunal but, again, there is no particularisation of any such asserted jurisdictional error.

10. The grounds of appeal do not disclose an arguable case of error on the part of the Federal Magistrate or jurisdictional error on the part of the Tribunal.  The applicant, who appears in person assisted by an interpreter, has not been able to point to any such error.  I see no error on the part of the Federal Magistrate, nor jurisdictional error by the Tribunal.  Indeed, there seems to be no dispute that the Tribunal carried out its functions in providing the required notification under the Migration Act 1958 (Cth). In the absence of any suggestion of fraud, SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 does not assist the applicant.

    CONCLUSION

11. It follows that the application for leave to appeal should be refused.

12. The applicant is to pay the first respondent’s costs in the sum of $1000.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        10 September 2008

The applicant was self represented.
Solicitor for the Respondents:	Australian Government Solicitor

Date of Hearing:	25 August 2008
Date of Judgment:	25 August 2008