SZAQN v Minister for Immigration and Multicultural and Indigenous Affairs

Federal Court of Australia|2006-05-09|Before: Allsop J, In Allsop J, Young J

REASONS FOR JUDGMENT 1 This is an appeal from the decision of Scarlett FM on 19 January 2006. The appeal is heard by me as a single judge, pursuant to s 25(1AA) of the Federal Court of Australia Act 1976 (Cth). 2 On an appeal from the Federal Magistrates Court, the issue I must consider is whether the appellant has demonstrated that the judgment of the Federal Magistrate is attended by some legal, factual or discretionary error: see Abeyesinghe v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1558 at [4]. The authorities establish very clearly that fact finding is the responsibility of the lower court or tribunal: see eg Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at 423 [67]. 3 In this matter, the sole issue that arises on appeal is whether any error was made by Scarlett FM in rejecting the appellant's claim that he was denied procedural fairness by the Tribunal. In my opinion, no error was made by the Federal Magistrate. To explain why I have reached this conclusion, it is necessary to recount the background and history of the matter to some extent.

background 4 On 28 May 2004, the Federal Magistrates Court dismissed an application by the appellant for review of a decision of the Refugee Review Tribunal ('Tribunal') which was handed down on 30 April 2003. By that decision the Tribunal affirmed a decision of the delegate of the first respondent not to grant a protection visa. The appellant appealed from the orders of the Federal Magistrates Court and the appeal was heard by Allsop J on 13 and 17 December 2004. 5 Allsop J delivered his reasons for decision on 22 December 2004. Allsop J found in favour of the appellant in one respect: his Honour held that the Federal Magistrate had not dealt completely or entirely with a natural justice claim that had been raised by the appellant. The natural justice claim related to the appellant's non-attendance at the Tribunal hearing on 7 April 2003. Allsop J considered that the claim should either have been rejected for absence of evidence, or it could have been considered on the basis of evidence. In Allsop J's view, it was unclear from the Federal Magistrate's reasons what course had been taken by the Federal Magistrate. Consequently, Allsop J set aside the decision and remitted the issue of natural justice to the Federal Magistrates Court for reconsideration and determination. 6 Allsop J made it clear that if the appellant wished to press that issue in the remitted proceeding, he should do so on evidence. 7 Allsop J proceeded to deal with the balance of the arguments raised by the appellant on appeal. He rejected them on the grounds that none had any merit. Accordingly, Allsop J ordered that the matter be remitted back to the Federal Magistrates Court to deal with the question whether the Tribunal had failed to afford the appellant procedural fairness in connection with the appellant's non-attendance at the hearing of the Tribunal on 7 April 2003.

Remitted federal magistrates court proceeding 8 The appeal before me arises in respect of the decision of Scarlett FM on that remitter. Contrary to the orders made by Scarlett FM, the appellant did not file any affidavit evidence in support of the claim that he had been denied procedural fairness in connection with his non-attendance at the Tribunal hearing on 7 April 2003. Nevertheless, the Federal Magistrate permitted the appellant to give oral evidence before him as to why he had not appeared before the Tribunal. 9 The appellant gave oral evidence and he was cross-examined. The Federal Magistrate considered that evidence but arrived at the conclusion that he was not satisfied that the appellant had made the call to the Tribunal when he said he did to pass on a message that he was unable to attend by reason of illness. Accordingly, the Federal Magistrate held that there had been no denial of natural justice or other jurisdictional error by the Tribunal and that the Tribunal was entitled to proceed, as it did, to make a decision in the absence of the appellant pursuant to s 426A of the Migration Act 1958 (Cth).

conclusion 10 In my opinion, there was no error in the procedure adopted by the Federal Magistrate or in his Honour's conclusions. The Federal Magistrate made the following findings: 'In my view there is insufficient evidence for me to be satisfied that the Applicant made that call to the Tribunal at the time when he said he did to pass on the message. That being the case, there is no evidence that the Tribunal was aware or should have been aware of the Applicant's illness and request for an adjournment. If the Tribunal was not aware of the situation then the Tribunal did not act improperly or in denial of the rules of natural justice in proceeding to hear the matter without making a further effort to enable the Applicant to attend before it to give evidence as is provided in s 416A of the Migration Act.' 11 These findings reveal no error that can be the subject of appeal.

Orders 12 Accordingly, the appeal must be dismissed. 13 There does not appear to have been an order that the Tribunal be joined as a respondent to these proceedings. In accordance with the High Court's decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, the Tribunal ought to have been joined as a respondent to the proceedings before the Federal Magistrate. I will order that the Tribunal be joined as the second respondent to the appeal. 14 I will also order that the appellant pay the first respondent's costs of the appeal. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young.

Associate: Dated: 25 May 2006 Counsel for the Appellant: The appellant appeared in person

Counsel for the First Respondent: E Warner Knight

Solicitor for the First Respondent: Australian Government Solicitor

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