SZNWQ v Minister for Immigration and Citizenship

[2010] FCA 484

FEDERAL COURT OF AUSTRALIA

SZNWQ v Minister for Immigration and Citizenship [2010] FCA 484

Citation:		SZNWQ v Minister for Immigration and Citizenship [2010] FCA 484
Appeal from:		SZNWQ v Minister for Immigration & Anor [2010] FMCA 151
Parties:		SZNWQ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 258 of 2010
Judge:		BUCHANAN J
Date of judgment:		18 May 2010
Catchwords:		APPEAL – appellant in default – appellant failed to comply with directions – appellant failed to attend at hearing – no apparent prospects of success – appeal dismissed under s 31A of Federal Court of Australia Act
Legislation:		Federal Court of Australia Act 1976 (Cth) ss 25(2B)(bb), 31A
Cases cited:		SZNWQ v Minister for Immigration & Anor [2010] FMCA 151
Date of hearing:	14 May 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	9
Solicitor for the First Respondent:	Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 258of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNWQ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	14 MAY 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth).

2. The appellant 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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 258 of 2010

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZNWQ
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BUCHANAN J
DATE:	18 MAY 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant, a citizen of India, entered Australia on 29 January 2009.  On 12 March 2009, he applied for a protection visa.  The application for a protection visa was refused by a delegate of the first respondent on 29 May 2009.

2. In his written application for a protection visa, the appellant had claimed to have been a business man in Mumbai who operated a car dealership in partnership, initially with one other person and then with an additional partner.  He made various claims to have been defrauded by the additional partner and then persecuted by various people associated with that person when he (the appellant) was unable to pay debts which had been incurred in the business.  The persecution, the appellant alleged, was connected with his political affiliations and his religion.

3. In the decision of the delegate, which recorded the reasons why the application for a protection visa was refused, the delegate summarised a number of exchanges which occurred at an interview he conducted with the appellant for the purpose of assessing his application for a protection visa.  A range of claims made by the appellant were rejected by the delegate who referred in some detail to the appellant’s inability to provide details or any form of support for those claims.  The appellant was on clear notice, from the terms of the delegate’s decision, that the absence of satisfactory detail to support his claims, and the inconsistency between his statements at the interview and those in his written application, were significant matters contributing to the refusal of his application for a protection visa.

4. On 26 June 2009, the appellant applied to the Refugee Review Tribunal (“the RRT”) for review of the delegate’s decision.  The RRT wrote to him on 16 July 2009, at the address provided in his application for review, inviting him to appear at a hearing before the RRT.  The letter was sent to the appellant by registered mail.  The letter informed the appellant that the RRT would be unable to make a favourable decision only on the material before it.  The appellant did not attend the hearing.  He did not contact the RRT after the hearing date to explain his absence or seek a hearing.  On 13 August 2009, the RRT handed down a decision affirming the delegate’s decision.  The RRT recorded that it was not satisfied with the veracity of the appellant’s claims.  It indicated a number of areas in which, had he attended the hearing, it would have sought further information from him about his claims.

5. On 4 September 2009, the appellant made an application to the Federal Magistrates Court of Australia (“the FMCA”) for judicial review of the decision of the RRT.  The application for judicial review alleged jurisdictional error on the part of the RRT.  The grounds of the application were:

   1. The Tribunal failed to comply with s424 of the Migration Act 1958.

   (a)The invitation was not given in accordance with ss 424(3)(a) and 424B of the Migration Act:

   i)The invitation did not specify the way in which the additional information may be given.

   ii)The invitation did not specify the period within which the information was to be given.

   2.The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

   3.The Tribunal’s decision was unjust and was made without taking into account the full gravity of applicant circumstances and the consequence of the claim.

   4.The applicant satisfy the four key elements of the Convention definition as detailed in page 2 and 3 of the Tribunal decision.  The Tribunal has not considered this aspect and therefore committed factual and legal error.

   5.The RRT has failed to investigate applicant claim, specially [sic] the grounds of persecution in India.  Therefore, the Tribunal decision dated 13 August 2009 was effected [sic] by actual bias constituting judicial error.

1. Having regard to the procedural history I have already recounted, those stated grounds were so lacking in apparent substance as to require at least some attempt to support them.  However, the decision of the FMCA (SZNWQ v Minister for Immigration & Anor [2010] FMCA 151), which was delivered on 24 February 2010, recorded that the appellant neither filed written submissions in the FMCA nor had anything to say at the hearing of his application in that Court. The FMCA, nevertheless, dealt with each of the grounds stated in the application for judicial review and rejected them.

2. On 15 March 2010, the appellant filed an appeal in this Court challenging the judgment of the FMCA.  The grounds of appeal were:

   1.His honors [sic] judgment delivered on the 24 February 2010 failed to find the error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903.

   2.The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.

   3.The Tribunal exceeds is [sic] jurisdictional or constructively failed to exercise its jurisdiction or denied my procedural fairness in that the Tribunal failed to investigate my genuine claims with the requirement of Migration Act 1958.

3. The grounds of appeal, like the grounds for the application for judicial review, lacked any apparent substance. 

4. Notwithstanding a direction that he do so, the appellant filed no written submissions in support of his appeal in this Court.  The appellant also failed to attend the hearing of the appeal.  It would have been open in those circumstances to dismiss the appeal either for the reason that the appellant had failed to comply with the direction to file written submissions (Federal Court of Australia Act 1976 (Cth) (“the Act”) s 25(2B)(bb)(i)) or for the reason that he had failed to appear at the hearing of the appeal (s 25(2B)(bb)(ii) of the Act). However, I was satisfied, for the reasons already given, that the grounds of appeal relied on in this Court lacked in substance. Accordingly, it seemed more appropriate to deal directly with the evident lack of prospects of success of the appeal. As a result, for the reasons set out above, I made an order at the hearing that the appeal be dismissed under s 31A of the Act as having no reasonable prospects of success. I ordered that the appellant pay the costs of the first respondent.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        18 May 2010