FEDERAL COURT OF AUSTRALIA

SZENG v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1064

SZENG AND SZENH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1959OF 2005

ALLSOP J

26 JULY 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the Respondent’s costs.

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

REASONS FOR JUDGMENT

1                     At 10.30 am this morning, the appeal in matter number NSD 1959 of 2005 was called on for hearing before me. This is an appeal by two appellants of Mongolian background who complain about the decision of the orders made by the Federal Magistrates Court on 29 September 2005 in which the Federal Magistrate dismissed the judicial review application in respect of the decision of the Refugee Review Tribunal. There is no appearance by either appellant. I am satisfied, by material provided to me which bundle I will have marked as exhibit A, that the appellants have been informed of today's hearing. The matter came on for directions before a Registrar earlier in the year and they did not attend.

2                     Directions were made including setting the matter down today for hearing. Correspondence was sent to the address of the appellants provided in the notice of appeal.

3                     I am satisfied, as I said, that the appellants have been informed of today's proceedings in that they have had sent to the only address provided to the court in relevant communications. In the notice of appeal there is a telephone number which is identified. I am informed by Ms Clegg, and I accept that her instructing solicitor has attempted to ring that number today to no avail. There is apparently no additional information from the Department which would explain the absence of the appellants. Ms Clegg's instructing solicitor has made such phone calls today and previously.

4                     In those circumstances, in the absence of the appellants seeking to propound their own appeal, the Minister, perfectly appropriately, requests an order be made dismissing the appeal by reason of the absence of the appellants. I propose to do so relying on either or both of s 25(2B)(a) and (bb)(ii) of the Federal Court of Australia Act 1976 (Cth). In addition to proceeding on that basis, I should add that I have had the advantage of submissions prepared by Ms Clegg in relation to the substance of the matter. The appellants did not appear before the Tribunal. Thus, the only material the Tribunal had before it was material that had been placed before the Department and the delegate.

5                     An issue arises in such a case nevertheless about the possible application of s 424A of the Migration Act 1958 (Cth) if it were the case that information that had been provided by the appellants, not to the Tribunal but to the Department, had been the reason or a part of the reason for the decision of the Tribunal. I refer generally to the decisions in the five matters dealt with by the Full Court in the decision SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2. In my view, having looked at the Tribunal's decision, there is much to be said, if I may respectfully say so before the submissions of Ms Clegg, where it is stated that the only reason for the decision was the absence of information which the hearing was intended to cure not the information that had been provided.

6                     This is a real distinction, that is, one that has been drawn by me in a number of cases, including SZEZI v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1195and others. Where the Tribunal simply cannot be satisfied of the elements of the criteria required including the satisfaction of Article 1A(2) of the Refugees Convention, made relevant by s 36 of the Act, then s 65 of the Act mandates that, the Tribunal refuse to grant the visa and affirm the decision. That is not using the information previously given as part of the reason. The reason, and the only reason, is the inability from material before it and the need for further information to reach a state of satisfaction. In any event, in this case, I do not need to deal with the matter on the merits.

7                     Suffice it to say that in any further application, if there be one in this matter, the merits of that argument would need to be counteracted if the appellants were to have any prospects of success. In any event, they have chosen, apparently, not to prosecute their appeal and for those reasons, based on the provisions of s 25 of the Federal Court of Australia Act that I have identified, I make the following orders:

(1) The appeal be dismissed.

(2) The appellants pay the respondent's costs.

Associate:

Dated: 21 September 2006