FEDERAL COURT OF AUSTRALIA

SZJNR v Minister for Immigration & Citizenship [2007] FCA 1724

MIGRATION – consideration of an appeal from orders of the Federal Magistrates Court dismissing an application for judicial review – consideration of the merits of the appeal pursuant to Order 52, r 38A of the Federal Court Rules – consideration of s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth)

Decision

The appeal is dismissed with costs

Migration Act 1958 (Cth), s 424A

Federal Court of Australia Act 1976 (Cth), s 25(2B)(bb)

Federal Court Rules, Order 52, r 38A

Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507

SZJNR v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD1462 of 2007

GREENWOOD J

9 november 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellant shall pay the respondents’ costs of the appeal.

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

EX TEMPORE REASONS FOR JUDGMENT

1                     This matter has been listed for hearing this morning.  The matter was listed for 10.15am and there was no appearance by the appellant.  The matter has been stood down until 10.30am and the matter has been recalled, yet there is no appearance by the appellant.  On 20 September 2007, the Federal Court gave notice to the appellant of the time, date and place for a hearing of the appeal by sending that letter to the appellant’s nominated address in his affidavit filed in support of the notice of appeal, namely, 1/6 Forth Avenue, Campsie, NSW, 2194.  The Appeal Book was also served upon the appellant at that address (24 October 2007) and the first respondent sent its submissions to the appellant at the same address (6 November 2007). 

2                     The first respondent has moved for an order pursuant to s 25(2B)(bb) of the Federal Court of Australia Act 1976 (Cth) for an order that the appeal be dismissed by reason of the failure of the appellant to attend a hearing relating to the appeal.  I have raised the question of whether the first respondent seeks an order under that section by reason of the default of appearance this morning or whether the matter ought to be resolved on the merits.  For the purposes of order 52, r 38A, I propose to proceed with the hearing in the absence of the appellant and dispositively act in relation to the matters raised by the appeal.

3                     The appeal is an appeal from the decision of Federal Magistrate Barnes delivered on 11 July 2007 which dismissed an amended application for Judicial Review of a decision of the Refugee Review Tribunal dated 10 August 2006 and handed down on 19 September 2006.  The Tribunal had affirmed a decision of a delegate of the first respondent to refuse to grant the appellant a protection visa. 

4                     By a notice of appeal filed on 27 July 2007, the appellant contends that a breach of the rules of natural justice occurred in connection with the making of the decision by the Tribunal, and the particulars of that ground are five-fold.  The first is that the appellant contends that his statement is a genuine story.  The second is that the Tribunal failed to give the appellant a chance to provide information and evidence.  The third is that the Tribunal did not consider the information and evidence provided by the appellant to the Tribunal which, in effect, is an allegation of bias.  On that ground, the appellant contends that there was unfairness at the hearing.  Ground 4 raises a contention that the appellant was not given any opportunity to provide evidence to the Tribunal and ground 5 contends that the Tribunal did not let the appellant attend a hearing or provide an opportunity for the appellant to provide reasons in support of his application.

5                     Ground 4 of the appeal raises the question of an accident that occurred to the appellant when he apparently, as he contends, accidentally fell down from a truck, bumped his head, and injured his foot;  had to lie in bed for two days;  could not move and was therefore unable to attend the hearing before the Tribunal.  The appellant contended that he requested a friend to write a letter to the Tribunal requesting an adjournment of the hearing.  The appellant’s failure to attend the Tribunal, of course, has some resonance with the experience of the Court this morning in that the appellant has failed to appear. 

6                     The question of the appellant’s accident and his request that the Tribunal adjourn the hearing was first raised orally before Federal Magistrate Barnes.  The Federal Magistrate dealt with those matters in the course of the reasons and I can find no error in the way that matter was dealt with.  The appellant failed to file any evidence in support of the contention and simply left the matter as a matter of oral submissions.  There was no affidavit from the friend; no nomination of the name of the friend; and no copy of the letter tendered.

7                     In relation to all the other grounds, apart from the bias ground, they all turn on the question of whether or not the Tribunal provided an opportunity to the appellant to put evidence and material before the Tribunal.  The position is, of course, that an application was made to the Tribunal, and the appellant provided the Tribunal with a further copy of a statement which had been lodged in support of the visa application.  That statement was in precisely the same terms, although it bore a later date. 

8                     The Tribunal wrote to the appellant on 27 May 2006 at the address nominated in the application form, which was 7/127 Evaline Street, Campsie, New South Wales, and then further wrote on 15 June 2006 inviting the appellant to attend a hearing on 18 July 2006 at a nominated date, and place, and time.  The appellant responded to that letter by returning a response to the hearing invitation form at which the appellant indicated he would wish to attend.  So far as the Tribunal was concerned, the appellant had been given proper notice and had responded to the form.  The appellant did not appear at the hearing and the Tribunal proceeded to reach a decision and ultimately publish or hand down that decision on 19 September 2006.

9                     Federal Magistrate Barnes dealt with all of those matters;  canvassed the forensic analysis of the factual contentions in the statement undertaken by the Tribunal which are set out in the findings and reasons at Appeal Book 76 and Appeal Book 77, and dealt with each of the contentions raised by the appellant in the application for judicial review before the Federal Magistrates Court.  I can find no error in relation to any of those matters.

10                  The last matter which is raised by ground 3 of the notice of appeal is, in essence, a contention of bias on the part of the Tribunal and, inferentially, a contention of error on the part of the Federal Magistrate by failing to find bias on the part of the Tribunal.  That contention is not supported by any particulars or any material and having regard to the observations of the High Court in Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at 531, and particularly [72], the threshold for establishing either actual or apprehended bias is not made out. 

11                  Accordingly, having regard to the merits of the matter, there is no ground of appeal made out by the appellant on these papers.  It necessarily follows, therefore, that the appeal must be dismissed on the merits, with costs. 

Associate:

Dated:         9 November 2007