FEDERAL COURT OF AUSTRALIA

SZJVS v Minister for Immigration and Citizenship [2008] FCA 848

NAVX v the Minister [2004] FCAFC 287

SZJVS v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2538 of 2007

REEVES J

24 APRIL 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the first respondent’s costs fixed in the sum of $3,000.00.

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

REASONS FOR JUDGMENT

Introduction

1                     The appellant is a citizen of Pakistan.  He arrived in Australia during May of 2006 and applied for a protection visa (class XA) on 20 June 2006.  In that application he relied upon a ‘clear threat to his life and liberties’ on return to Pakistan because of his political activities in that country.  That application was rejected by a delegate of the Minister and the appellant has unsuccessfully sought review before the Refugee Review Tribunal (‘the Tribunal’), the Federal Magistrates Court, and now this Court.  For the reasons I am about to give, this Court must dismiss the appellant’s appeal.

Background – summary of facts

2                     It is necessary to briefly set out some of the history of the matter.  The decision of the Minister’s delegate to refuse the appellant’s application for a protection visa was dated 29 July 2006.  Soon after that, the appellant lodged an application with the Tribunal seeking to review the delegate’s decision.  On 30 August 2006, the Tribunal wrote to the appellant and advised him that upon considering ‘the material before it in relation to [his] application, [the Tribunal] is unable to make a decision in [his] favour on this information alone.’  The Tribunal then invited the appellant to attend a hearing before it on 6 October 2006, to give oral evidence and present arguments in support of his claims.

3                     The appellant failed to attend that hearing.  The explanation he gave to the Federal Magistrate was that a friend had given him what was now perceived to be incorrect advice, telling him not to go to the Tribunal hearing.  This explanation obviously forecloses on any claim that the appellant did not receive the Tribunal’s letter.  It also removes from consideration any of the jurisdictional errors that are regularly put forward in relation to the Tribunal’s consideration of an applicant’s evidence and arguments at such hearings.

The Federal Magistrate’s decision

4                     It followed that, at this point, the appellant’s application was all but doomed to fail because, as the Federal Magistrate pointed out (at [17] of his decision) by reference to the Full Court’s decision in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287, in these circumstances the affirmation of the delegate’s decision by the Tribunal was inevitable.  It should therefore have been no surprise that by its written decision handed down on 23 November 2006, the Tribunal decided to affirm the delegate’s decision. 

5                     Putting aside some jurisdictional error in the process that the Tribunal followed - and none has been shown in this matter - that decision was effectively conclusive of the appellant’s application.  Nonetheless, the appellant thereafter sought judicial review of the Tribunal’s decision in the Federal Magistrates Court.

6                     To succeed in that review application, the appellant would need to demonstrate some error on the part of the Tribunal and that was always going to be an extremely difficult task, given his decision not to avail himself of the Tribunal’s invitation to attend the hearing and give oral evidence and present arguments in support of his claims.  Again, not surprisingly, in his decision delivered 11 December 2007, Federal Magistrate Nicholls dismissed the appellant’s application.

7                     I might add that his Honour delivered a considered and detailed set of reasons for his decision in which he appears to have been at pains to consider every possible avenue that might have provided the appellant with some relief from his predicament, albeit a self-imposed predicament.  His Honour could find none. 

Consideration

8                     Now the appellant comes to this Court.  In his oral submissions before me, the appellant asked me to refer his application back to the Tribunal, so that he might have another chance to put his evidence and arguments before the Tribunal. 

9                     As I pointed out to him and as the Federal Magistrate had pointed out to him before me, I have no power to remit matters in the absence of some demonstrated error, and indeed jurisdictional error, on the part of the Federal Magistrate or the Tribunal.  I have reviewed the decisions of both the Federal Magistrate and the Tribunal and, like his Honour, I can find no jurisdictional error that would allow me to take the course the appellant has urged upon me. 

10                  This appeal must therefore be dismissed.  I order the appellant pay the first respondent’s costs fixed in the sum of $3000.

Associate:

Dated:         5 June 2008