FEDERAL COURT OF AUSTRALIA

SZJOU v Minister for Immigration and Citizenship [2010] FCA 224

THE COURT ORDERS THAT:

1.                  The appeal is dismissed.

2.                  The appellants pay the first respondent’s costs in the fixed amount of $2,200.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                                             This is an appeal against the decision of a Federal Magistrate who dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).  It is now 10.33 am and this matter was listed for hearing at 10.15 am.  The matter was called and the appellants have failed to appear at the hearing of this application.  The consequence is that s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) is invoked and the Court has the power to dismiss the appeal on the grounds of the failure of the appellants to attend the hearing relating to the appeal.  I exercise that power and dismiss the appeal on that ground.

2                                             I also dismiss the appeal on the merits.  There are two grounds of appeal in the notice of appeal.  The first ground of appeal is that:

The [H]onourable [Federal Magistrate] erred in not finding that the Tribunal and the Delegate of the Respondent had not dealt with any substantive way, a key component of my claim that my life will be under threat on our return back to India.  By not dealing with this matter, there was a constructive failure to exercise jurisdiction on the part of the Tribunal, or lack of procedural fairness.

3                                             This was not a ground which was raised before the Federal Magistrate and I do not grant leave to permit the appellants to raise it in these proceedings.  In any event, the ground would have had no reasonable prospect of success because it is plain that the Tribunal did consider the first appellant’s claim and also considered the first appellant’s position if he were to return to India.

4                                             The second ground of appeal was that:

The [H]onourable [Federal Magistrate] failed to establish that the Tribunal made error in law and jurisdictional error in relation to the relief under section 424A of the Migration Act.

5                                             The Federal Magistrate dealt with the first appellant’s complaint about s 424A of the Migration Act 1958 (Cth) and said:

At the heart of [the Tribunal’s] reasons for affirming the decision under review, was its complete rejection of the Applicant’s claims to have been a member of any political party or group or to be sought by Muslims or persecuted for any Convention-related reason.  [The Tribunal’s] findings were based on the Applicant’s own evidence and his unsatisfactory explanations for inconsistencies, including with country information.

In the circumstances, there was no information which formed part of [the Tribunal’s] reason for affirming the decision under review which enlivened any obligation under s 424A(1) of the Act.

6                                             In my view, the Federal Magistrate did not err in coming to that view and I would dismiss the second ground of appeal.

7                                             Accordingly, I dismiss both grounds of appeal and dismiss the appeal.

8                                             The first respondent has handed to me an affidavit in support of an application for costs to be fixed.  I will order that costs be fixed in the sum of $2200.

Associate:

Dated:         15 March 2010