FEDERAL COURT OF AUSTRALIA

SZDMJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1034

MIGRATION – information incorporated in visa application republished to Refugee Review Tribunal is within s 424A(3)(b) Migration Act 1958 (Cth)

Migration Act 1958 (Cth), s 424A

SZDMJ v Minister for Immigration [2005] FMCA 452, affirmed

M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131, applied

Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry (2001) 110 FCR 27, referred to

NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744, distinguished

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, referred to

SZBNK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 998, cited

SZDMJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 814 OF 2005

GYLES J

29 JULY 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be dismissed. 

2.      The appellant pay the respondent’s costs of the appeal.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This appeal is another variation on the theme established by a combination of the decision of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 and the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Shamry (2001) 110 FCR 27.  The appeal is from a decision of the Federal Magistrates Court of Australia (SZDMJ v Minister for Immigration [2005] FMCA 452) refusing an application for review of a decision of the Refugee Review Tribunal (the Tribunal) affirming the decision of the Delegate of the respondent Minister to refuse the grant of a protection visa to the appellant.

2                     Only one point of substance arises (albeit indirectly) on the appeal.  One of the grounds taken before the learned Federal Magistrate was the failure by the Tribunal to comply with s 424A of the Migration Act 1958 (Cth)(the Act).  That attack upon the Tribunal’s decision was rejected because it was held that the information relied upon was not specifically about the appellant or another person but was just about a class of persons of which the appellant was a member and so answered the description in s 424A(3)(a). 

3                     The notice of appeal alleges that the Tribunal failed to comply with its obligations under s 424A.  The particulars of that claim were:

‘3.     The Tribunal failed:

3.1       to give to me particulars of any information, such as negative information or independent country information, that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

3.2       to ensure, as far as is reasonably practicable, that I understand why the above-mentioned information is relevant to the review; and

3.3       to invite me to comment on the information.’

No further particulars were given, either in writing or orally.  The appellant is unrepresented.

4                     Although not raised by the appellant in the Federal Magistrates Court or on this appeal, counsel for the respondent Minister has very fairly pointed out that there are two passages in the Tribunal’s reasons which could conceivably fall within s 424A(1) and not within s 424A(3)(a) as the Tribunal took into account information contained in the statutory declaration annexed to and incorporated in the appellant’s original visa application by contrasting the evidence given by the appellant at the hearing before the Tribunal with the contents of the original statutory declaration.

5                     In a well-constructed argument, counsel for the respondent put forward various bases upon which it could be said that the Tribunal did not breach s 424A.  I need not set them all out as, in my opinion, one of them is decisive.  The appellant’s application for review to the Tribunal incorporated a statement in the form of a statutory declaration by the appellant.  That declaration consisted of a critical examination of the reasons given for the decision by the Delegate of the Minister to refuse the appellant’s application for a visa.  In the course of that declaration the appellant referred several times to the claims that he had originally made and which were the subject of the Delegate’s decision.  Those claims were those set out in the statutory declaration provided with and incorporated in the original application and to which the Tribunal made reference.

6                     In my opinion, the appellant clearly republished the original claims to the Tribunal and relied upon them for the purposes of the review by the Tribunal.  It follows that all such information was given by the appellant to the Tribunal for the purpose of the application even if ‘application’ is limited to the original application and so falls within the exception in s 424A(3)(b).  Therefore, the obligations imposed by s 424A do not apply to that information.  In other words, the case is within the reasoning of M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 rather than NAZY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 744.  (See also SZBNK v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 998.)

7                     The other matters raised in the notice of appeal – failure to comply with s 425 of the Act and bias – are without substance.  Each was rejected in a reasoned manner by the learned Federal Magistrate and no error has been pointed to in those reasons.  This is an appeal from the decision of the learned Federal Magistrate, not from that of the Tribunal.

8                     The appeal is dismissed.  The appellant is to pay the respondent’s costs of the appeal.

Associate:

Dated:              29 July 2005