SZQDI & Ors v Minister for Immigration and Citizenship

[2013] HCASL 94

SZQDI & ORS

v

MINISTER FOR IMMIGRATION AND CITIZENSHIP & ANOR

[2013] HCASL 94
S283/2012

1. The first applicant is the mother of the three other applicants.  They are Sri Lankan nationals who arrived in Australian on 24 June 2009.  On 9 July 2009, they applied for Protection (Class XA) visas.  Their applications were refused by a delegate of the first respondent on 2 October 2009. 

2. The applicants applied to the Refugee Review Tribunal ("the Tribunal") for review of the delegate's decision.  On 10 November 2009, the Tribunal invited the applicants to attend a hearing before it because it was unable to make a favourable decision based on the information it had. Hearings were conducted in 2010 and on 15 March 2011, the Tribunal affirmed the delegate's decision.  The Tribunal found the applicants were not truthful witnesses and reasoned that if they had left Sri Lanka for the reasons claimed, the decision to flee would have been made earlier.

3. On 9 March 2012, the Federal Magistrates Court of Australia (Emmett FM) dismissed an application for judicial review of the Tribunal's decision. Although the Tribunal had not received the delegate's decision record by the time the applicants were invited to attend a hearing before it, Emmett FM rejected the contention that the Tribunal had exceeded its jurisdiction under s 425 of the Migration Act 1958 (Cth) ("the Act").

4. On 31 August 2012, the Federal Court of Australia (Katzmann J) dismissed the applicants' appeal from Emmett FM's decision. Katzmann J held that receipt of the decision record was not a precondition to the Tribunal commencing its review process and that no practical consequences flowed from the Tribunal not having received the delegate's decision within the time set by s 418(2) of the Act. The application was heard by the Tribunal only after the decision was received. Her Honour also considered the applicants' contention that the Tribunal's decision was infected by bias to be without merit.

5. There is no reason to doubt the correctness of her Honour's decision.  The application does not have sufficient prospects of success to warrant the grant of special leave.

6. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs to be paid by the first, second and third applicants, the fourth applicant being a minor.

S.M. Kiefel
5 June 2013 P.A. Keane