FEDERAL COURT OF AUSTRALIA

SZBBL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 834

SZBBL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N422 of 2004

TAMBERLIN J

SYDNEY

24 JUNE 2004

THE COURT ORDERS THAT:

The application for leave to appeal from the decision of the learned Magistrate is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     This is an application for leave to appeal from a decision of a Federal Magistrate that was delivered on 15 March 2004.  Although there was initially an objection to the competency of the appeal on the basis that the applicant had not complied with the time limits within which to file a notice for an extension, this has not been pursued.  The remaining issue before the Court is whether leave to appeal should be granted from the interlocutory decision of the learned Magistrate.

2                     When the application for review came before the Magistrate, it was summarily dismissed on the ground that no reasonable cause of action was disclosed in support of the application.  The Magistrate addressed this question in paragraph [8] of his reasons for decision.  It is because this decision for summary dismissal was interlocutory that the question arises as to whether leave to appeal should be granted.  This, in turn, requires consideration of two aspects:  first, the strength of the applicant’s case, which is to say, whether the applicant might have an arguable case, and secondly, whether an injustice might be occasioned if the appeal were not to be allowed, such that the interest of justice might be served by allowing the appeal.

3                     The applicant raises three matters on this application for leave to appeal from the Magistrate’s finding that no arguable case could be made out and that the proceedings should therefore be dismissed summarily.

Failure to attend the hearing before the Refugee Review Tribunal

4                     The first matter raised was that the applicant has been prejudiced by the conduct of her migration agent in relation to the hearing before the Refugee Review Tribunal (“the Tribunal”).  The contention is that the applicant did not appear before the Tribunal and therefore did not have an opportunity to present her case. 

5                     The short answer to this on the material before me is that the applicant was invited to come to a hearing and signed a form indicating that she did not want to attend.  It is manifest from the decision of the Tribunal that it would have been assisted by the applicant in dealing with the matter if she had been present, but it is also apparent that she made a positive election not to attend the hearing.

Discrepancies in the Applicant’s Statement

6                     The second matter is in the nature of an alleged denial of procedural fairness before the Tribunal, on the basis that the Tribunal relied on an inconsistency in a statement as to why she ought to be classified as a refugee in its findings and reasons for decision.  It is said that the statement indicated in one part that she was a young woman, and in a later part that she was an old woman.  The statement has not been attacked or disowned by the applicant but it has been said that this was an error arising from the migration agent’s omission or failure to perform his duty.

7                     There are several answers to this argument.  The first is that this discrepancy was not treated as a pivotal reason for the decision, but rather as an observation made in the course of the decision that reinforced the basic reasoning adopted by the Tribunal.  This was adverted to in several places in the decision where the Tribunal stated that there were problems with the claim, in that the 20-year old applicant had described herself as an older woman.  There was also a subsequent reference in the Tribunal’s decision to the Tribunal’s concern that the advanced claims may not relate to the applicant, since she is described in the statement as being an old woman.

8                     In addition, the applicant was present at the hearing before the Magistrate, and had an opportunity to present her case in relation to this matter.  The Magistrate refers to this discrepancy in his decision, and notes the applicant’s submission that her migration agent did not keep her informed about what was going on, the fact that she was dissatisfied with his performance, and the argument that she was denied a fair hearing by the Tribunal because of his poor performance.  

9                     In my view, there is no basis for a contention that the applicant was deprived of procedural fairness in relation to this matter.  The learned Magistrate refers to a decision by the Chief Federal Magistrate in the case of M172 v Minister for Immigration & Anor [2004] FMCA 23 where, after considering the relevant authorities, the Chief Magistrate concluded that default on the part of a migration agent could not support a claim of jurisdictional error on the part of a review tribunal.

10                  The learned Magistrate hearing this application adopted the view that that issue had been clearly and conclusively dealt with in the Court.  In considering whether to dismiss the application summarily on the basis it did not disclose a reasonable cause of action the Magistrate clearly indicated that he undertook the task of examining the relevant material and forming a view, not simply in relation to the matters which had been raised, but generally, in relation to whether there was any arguable ground.  This is reinforced by the statement by the Magistrate towards the end of his reasons that no arguable jurisdictional error was apparent to him on the record of the Tribunal decision.

11                  The applicant also contends on this point that the Tribunal did not alert her to the inconsistencies in her statement between the references to herself as a young woman and as an old woman.  There are numerous decisions in this Court to the effect that it is not essential for a tribunal or a court to put to an applicant the mental processes or reasoning which the tribunal or court is undertaking in reaching its conclusions.

12                  It is true that in some cases, a tribunal may be considering evidence that is not apparent to an applicant, in a manner that is unfavourable to the applicant’s case. This is not such a case.  We are here concerned with the statement made by the applicant herself, which in my view must be taken, at the very least, to have been read by the applicant at some stage up to the end of the hearing by the learned Magistrate.  As noted above, this was not a statement that has been disowned or disclaimed by the applicant. Indeed, it seems to me that it was reasonably incumbent on the applicant to address this discrepancy in the statement.

Absence of Country Information

13                  Finally, the third matter that the applicant relies upon is the absence of a reference in the Tribunal’s decision to certain country information, which is information from sources other than the applicant, in the section of the decision that concerns the findings and reasons.  In the course of the decision, the Tribunal refers to three pieces of information that are extracted and relied on by the applicant.  It is true that this information is not specifically referred to in the Tribunal’s findings and reasons, but in my view this does not support the conclusion that the Tribunal member ignored this information.

14                  The information in question is set out in the course of the decision.  It concerns the US State Department's 2002 country report on human rights and practices in Fiji. Among other matters, this report deals with racial and ethnic minorities, and the tensions existing between them in Fiji.  It acknowledges that there is severe tension between ethnic Fijians and Indo-Fijians, and that this has been a long-standing problem.

15                  It is also true that it is noted that during the year the United Fiji Party or Sogosogo Duavata ni Lewenivanua (“SDL”) Government worked to ensure the political supremacy of ethnic Fijians and one quarter of valid complaints to a Human Rights Commission dealt with racial and ethnic equality issues.  However, a fair reading of this report must also note the references to the appointment during the year of a respected moderate as head of the Native Land Trust Board, which was considered to assuage ethnic tensions over land to a certain degree.

16                  The extracts relied on by the applicant are only part of the overall picture.  There was other country information before the Tribunal that left it open, in my view, on the basis of the whole of the material before it, for the Tribunal to find that if the applicant were to face harm from private individuals on the basis of her ethnicity, adequate state protection was available to her in Fiji.

17                  Moreover, in its findings and reasons, the Tribunal adverts to the tension between the groups, but these are considered to be isolated cases of minor harassment, mainly in the form of random assaults by inebriated young Fijian males, and of low-level theft. The Tribunal nevertheless considered that the independent sources confirmed that there was no risk of institutionalised mistreatment by authorities of Indo-Fijians.

18                  In these circumstances it is my view, particularly since this was purely a question of fact, that it was open to the Tribunal to reach the conclusion that it did reach on this aspect. 

Conclusion

19                 Accordingly, having regard to the matters raised and for the above reasons, I am of the view that no reviewable error has been shown on the part of the Tribunal and also that the reasoning of the learned Magistrate does not disclose any error.  It was open to the Magistrate to reach the conclusion that he did reach in relation to the summary dismissal.  Nothing has been placed before me that indicates that there is a case that raises a reasonable prospect of success and accordingly I do not consider that leave should be granted.

20                  I do not consider having regard to the finding in relation to the lack of substance in the case that any injustice will be caused as a result of upholding the decision of the Magistrate in this matter. 

Order

21                  The application for leave to appeal from the decision of the learned Magistrate is dismissed with costs.

Associate:

Dated:              28 June 2004