FEDERAL COURT OF AUSTRALIA

SZAGE v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1121

MIGRATION – appeal from an interlocutory decision of a Federal Magistrate- applicant failed to appear at the hearing before the Federal Magistrate – no arguable case of jurisdictional error on the part of the Refugee Review Tribunal – appeal dismissed

Migration Act 1958 (Cth)

NACA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 659

SZAGE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 41 of 2004

HILL J

30 AUGUST 2004

SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The applicant pay the respondent Minister’s costs of the appeal.

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

REASONS FOR JUDGMENT

1                     The applicant has sought judicial review of a decision of the Refugee Review Tribunal before a Federal Magistrate. The case was listed for hearing on 20 October 2003. The applicant did not appear and the learned Magistrate made orders dismissing the proceedings.

2                     Under the rules of the Federal Magistrates Court where a case is dismissed in this way, an applicant may make a further application to the Court to set aside the order dismissing the proceedings so that his or her case can be heard. This the applicant did. He filed an affidavit in the Federal Magistrates Court in which he said that he had made a mistake concerning the date of the hearing. Apparently he thought the hearing would take place on 22 October when in fact it was scheduled to take place on 20 October.

3                     In determining whether to set aside the order, the Magistrate was required to consider whether there was at least an arguable case that the decision of the Tribunal should be set aside on the grounds of jurisdictional error. If indeed the applicant's case was such that a hearing would be futile, then clearly the Magistrate should not set aside the order initially made by him.

4                     The learned Magistrate noted that the applicant indicated that his complaint concerning the Tribunal's decision was that the proceedings before the Tribunal had been pre-judged. It seems that the applicant's view about this stemmed from the fact that the Tribunal at the end of the hearing indicated that it had decided the case against the applicant. The Tribunal later published its reasons for doing so. If that was the only basis of the claim that the Tribunal had pre-judged the issue, then it was bound to fail and that is the view that the Magistrate took.

5                     Because the Magistrate formed the view that there would be no utility in permitting the applicant a further opportunity to "rehearse his complaints," the Magistrate dismissed the application with costs. The applicant then lodged a notice of appeal in this Court. In that document he indicated that he was not satisfied with the Magistrate's decision because the Magistrate had failed to find that the Tribunal had not complied with the Migration Act 1958 (Cth). It was said also that the Tribunal's decision was "influenced by sufficient doubts and therefore there was denial of procedural fairness in RRTs decision." The document said also, but without any further particularisation, that the Tribunal's decision was "affected by judicial error."

6                     When the matter came before me for directions, the representative of the Minister noted that any application before me was properly an application for leave to appeal rather than an appeal itself. This was because the decision of the Magistrate was interlocutory in character. That this is so may be seen from the decision of Hely J in NACA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 659 and the cases referred to by his Honour at [15] of his Honour's reasons. It was for this reason that I ordered that to the extent that leave was necessary, as indeed it is, the purported appeal should be treated at this stage as an application for leave to appeal.

7                     When the matter came before me this morning, the applicant initially indicated that he might wish to withdraw his case. However ultimately he did not seek to do so and the application for leave proceeded to a hearing.

8                     The applicant was asked by me to indicate the error of principle which the Magistrate had made. The applicant replied that the Magistrate had followed the footsteps of the Tribunal in giving his decision. That of course is not an accurate statement of what the Magistrate did. Rather, the Magistrate correctly considered both the reasons given by the applicant for not attending the initial hearing and the issue of whether a new hearing would be futile.

9                     I pressed the applicant to indicate to me yet again what error of jurisdiction the Tribunal itself had committed. The applicant raised two matters. The first was that the applicant had scars which he said came from an incident which was discussed before the Magistrate. His complaint appears to be that the Magistrate, if not satisfied that the scars had been caused in the way the applicant said, should have referred the applicant to a medical specialist who may have corroborated what the applicant said. The second matter to which the applicant referred was that the hearing of the Tribunal had taken some 4 hours and ultimately had been decided on the basis that the Tribunal did not believe the applicant.

10                  As to the first of these matters, there was no obligation on the Tribunal to seek additional evidence. Ultimately it was for the applicant to put before the Tribunal all evidence the applicant wished to put in support of his case. Clearly, as the Tribunal held, the existence of scars tells virtually nothing about how the scars were caused. It is not possible for me to say whether additional medical evidence would have added to the matter ultimately. The question was whether the Tribunal believed the applicant as to how the scars were caused. Likewise the second matter involved no jurisdictional error as the learned Magistrate pointed out.

11                  Ultimately the Tribunal's decision turned upon the fact that the Tribunal did not believe the applicant. There were a number of reasons which the Tribunal gave as to why this was the case. It is unnecessary to set out here the reasons given by the Tribunal. It suffices only to say that the question whether or not the applicant should be believed was a question for the Tribunal. It was not a question either for the Magistrate nor is it a question for me. Failure to believe what an applicant says is not a jurisdictional error.

12                  I am accordingly of the view that the Magistrate did not err in refusing to set aside the order previously made by him dismissing the applicant's application for jurisdictional review on the ground of the applicant's non appearance. The learned Magistrate recognised the correct issues to be considered by him. He took into account the excuse given by the applicant for non attendance and no doubt was conscious of the importance to the applicant of the case.

13                  However, the learned Magistrate concluded and I think correctly, that to allow the applicant to argue the case would be an exercise in futility for there would be no purpose served in doing so. The applicant did not have an arguable case that the Tribunal's decision should be quashed on the grounds of jurisdictional error. I would accordingly dismiss the appeal and order the applicant to pay the Minister's costs of it.

Associate:

Dated: 30 August 2004