SZNHQ v Minister for Immigration & Citizenship

[2009] FCA 948

FEDERAL COURT OF AUSTRALIA

SZNHQ v Minister for Immigration & Citizenship [2009] FCA 948

SZNHQ and SZNHR v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 494 of 2009

EDMONDS J
31 AUGUST 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 494 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNHQ
First Appellant

SZNHR
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	19 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 494 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNHQ
First Appellant

SZNHR
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	31 AUGUST 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appellants pay the first respondent’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 494 of 2009

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZNHQ
First Appellant

SZNHR
Second Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EDMONDS J
DATE:	31 AUGUST 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On Wednesday, 19 August 2009, I dismissed an appeal from the Federal Magistrates Court (Nicholls FM) ([2009] FMCA 439) dismissing an application for judicial review of a decision of the second respondent (‘the Tribunal’) affirming the decision of a delegate of the first respondent (‘the Minister’) to refuse the appellants protection visas (class XA). What follows are my reasons for dismissal of the appeal.

   BACKGROUND

2. The appellants are mother and son and citizens of Malaysia.  The appellants arrived in Australia on 28 August 2007.  On 9 October 2007 the Department of Immigration and Citizenship (‘the Department’) received two applications for protection visas from the appellants.  On 19 November 2007 a delegate of the Minister refused both protection visa applications.  On 23 November 2007 the Tribunal received applications for review from the appellants.  On 24 December 2007 the Tribunal wrote to the appellant mother seeking comment on certain information.

3. On 5 February 2008 the Tribunal conducted a hearing of the appellants’ review application.  The appellant mother attended the hearing but the appellant son did not.  The appellant mother wrote to the Tribunal on 29 February 2008 to explain her son’s absence.

4. On 28 February 2008 the Tribunal handed down its decision affirming the decision of the delegate.  The appellant mother attended the handing down and received a copy of the decision.  A copy of the decision was sent by registered mail to the appellant son at his address in the application for review as well as to the updated address provided to the Tribunal.

5. On 6 March 2009, over 12 months later, the appellants lodged an application for judicial review in the Federal Magistrates Court.  The hearing in the Federal Magistrates Court was conducted on 7 May 2009 and on 12 May 2009 Nicholls FM dismissed the application.

   THE APPELLANTS’ CLAIMS FOR REFUGEE STATUS

6. The appellants claim to have a well-founded fear of persecution on their return to Malaysia because of their religious beliefs (Christianity in a predominantly Muslim country) and the gender discrimination to which the appellant’s mother would be subjected.

   THE TRIBUNAL’S DECISION

7. The Tribunal rejected the appellant son’s claims because the claims provided in his application were not sufficient for the Tribunal to be satisfied he had a real chance of being subject to harm amounting to persecution in the reasonably foreseeable future.

8. The Tribunal found the appellant mother an unreliable witness and also rejected her claims.

   IN THE FEDERAL MAGISTRATES COURT

9. The appellant mother made an application for an adjournment, it would seem, in order to have the tape of the Tribunal hearing analysed to show interpretation issues during the hearing.  The application was rejected because the threshold issue of jurisdiction was not affected by the details of the underlying application and any further postponement of the hearing ‘would be a futile exercise’.

10. His Honour dismissed the appellant mother’s application on a jurisdictional basis: the appellant mother failed to file her application for review within 28 days of ‘actual’ notification of the decision, given:

    (1)The appellant mother attended the handing down of the Tribunal’s reasons for decision and was given a copy of the reasons on 28 February 2008;

    (2)the application made to the Federal Magistrates Court was made on 6 March 2009, more than 12 months after, and well outside, the 28 day period stipulated in s 477(1) of the Migration Act 1958 (Cth) (‘the Act’) for the making of such applications.

11. In addition, his Honour rejected the appellant mother’s application for an extension of time as the Court did not have jurisdiction to grant an extension of time to file her application beyond a further 56 days from the expiry of the initial 28 day period.

12. His Honour also dismissed the appellant son’s application on a jurisdictional basis.  His Honour found, in relation to ‘actual’ notification, relying on, inter alia:

    (1)The appellant son was residing at the same address as the appellant mother;

    (2)the Tribunal sent its decision record to the appellant son at the address in the application for review and the address nominated in a later change of contact details form;

    (3)that the application to the Federal Magistrates Court asserts notification of the Tribunal’s decision was received in ‘Feb 2008’; and

    (4)that the appellant mother acted on her son’s behalf before the Tribunal in the conduct of their application.

13. Thus, as actual notification occurred about 28 February 2008 and the application for review was filed on 6 March 2009, more than 12 months later, the appellant son was well outside the 28 day time period stipulated in s 477(1) of the Act. In addition, the appellant son’s application for an extension of time was dismissed for the same reason that the appellant mother’s was rejected (see [11] above).

    NOTICE OF APPEAL

14. There are two grounds of appeal identified in the notice of appeal –that the appellants were denied natural justice; and that the Federal Magistrates Court acted in excess of its jurisdiction.

15. First, there is nothing in the reasons for judgment to indicate any denial of natural justice.  No transcript of the hearing has been provided and the information provided in the reasons for judgment does not reveal any denial of natural justice.  In fact, the transcript reveals far from being denied natural justice, his Honour went to some lengths to ensure the appellant mother (who appeared on behalf of her son) was provided with adequate interpretation assistance and sufficient time to have submissions translated.  No particulars or submissions have been provided to identify what his Honour is said to have done to deny the appellants natural justice.

16. Second, the Federal Magistrates Court has determined it did not have jurisdiction to hear the appellants’ application given the delay in filing the application for review.  It is difficult, without particulars or submissions, to identify what his Honour did in excess of jurisdiction.

17. Accordingly, both grounds of appeal must be rejected.

    CONCLUSION

18. The appeal must be dismissed with costs.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:        31 August 2009

Counsel for the Appellants:	The appellant mother appeared in person
Counsel for the First Respondent:	Ms Kate Morgan
Solicitor for the First Respondent:	Australian Government Solicitor

Date of Hearing:	19 August 2009
Date of Judgment:	31 August 2009