SZATJ v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-02-17|Before: Whitlam J

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court dismissing an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 12 February 2003. The Tribunal affirmed a decision of a delegate of the respondent not to grant the appellant a protection visa. 2 The grounds of appeal set out in the notice of appeal from the decision of Barnes FM allege that the Tribunal: (a) made errors of law; (b) did not enquire into the matter properly; and (c) did not accept the appellant's documents. These grounds replicate those relied on in the application to the Federal Magistrates Court. They were treated by Barnes FM (at [8]) as giving rise to questions of jurisdictional error and denial of procedural fairness. 3 The application to the Federal Magistrates Court was filed more than 28 days after receipt of the Tribunal's decision. This prompted the respondent to file a notice of objection to the competency of the application. The relevant findings of fact made by Barnes FM touch on the competency of the appeal. The grounds of appeal do not challenge any of the findings of fact in the Court below on that question. Nor has the appellant taken issue with them in her address today.

4 The background to the matter is that the appellant, a citizen of Nigeria, sought a protection visa on the ground that she had a well-founded fear of persecution because Nigeria was unwilling or unable to protect her from persecution on account of her homosexuality. The appellant did not appear at the Tribunal hearing. The Tribunal, nonetheless, did consider the appellant's claims and found they were too general and lacking in detail to establish that she had a well-founded fear of persecution within the meaning of the Convention. The federal magistrate set out (at [5]) the findings of the Tribunal with regard to the appellant's evidence:

'5. The Tribunal found that the applicant's claims lacked detail. It canvassed aspects of the claims about which it had concerns including: a) the absence of detail about the time which had elapsed between her father beating her and her leaving home; b) what, if anything, happened after her father reported her to the local police; c) whether she encountered problems between 1991 and 1994 so as to lead her to marry to disguise her sexual orientation; d) when her husband found out, and how she could have cohabited with him for apparently five years without him finding out about her sexual orientation; e) the circumstances of the report to the police that her husband beat her; f) how she became aware of unknown men making enquiries about her after the alleged assault and visiting her in hospital. This section of her claims was described as very confused; g) how her girlfriend assisted her to leave Nigeria and why she apparently departed three months after she obtained the papers to do so (as such information did not support her claim that she was in imminent danger); h) why her father would have reported her in 1990 to the Bakassi Boys when country information indicated this group was formed in 2000 (such a claim being regarded as implausible); i) how she came to know that her father and husband had reported her and how she came to know of her girlfriend's movements.

5 Barnes FM found the following facts relevant to the notice of objection of competency:

'10. It is clear from the material before the Court that on 19 January 2002 the applicant authorised her migration agent to act for her in connection with the Tribunal application. The Tribunal was notified of this on 22 January 2002. The applicant authorised her agent to receive communications from the Tribunal and it was to his address that the Tribunal sent the letter of 11 December 2002 notifying her of the hearing. At the same time a copy of that letter was also sent to the last notified personal address for the applicant. The Tribunal adopted the appropriate method for notifying the applicant in this case in accordance with paragraphs 441A(b) and (c) of the Act. I am satisfied that no complaint can be made on the evidence before me of the manner in which the Tribunal notified the applicant. Insofar as the applicant complains that she was not notified personally of the hearing, this was not attributable to the Tribunal as she had not notified the Tribunal of her changed personal address and the Tribunal correctly sent the notice to the last notified address for service as well as to the last notified personal address. Insofar as she complains that the agent did not notify her of the hearing, again, this is something that cannot be attributed to the Tribunal. The Tribunal did not fall into error in the manner in which it notified the applicant of the hearing.' The federal magistrate held that although the appellant said that she was not notified personally and the agent did not notify her of the hearing, the Tribunal had notified her in accordance with the requirements of s 441 (4) (a), (b) and (c) of the Migration Act 1958 (Cth) ('the Act'). The Federal Magistrate found that the appellant lodged her application for review by the Court more than 28 days after notification by the Tribunal's decision and upheld the objection to competency. 6 Nonetheless, Barnes FM did consider the substantive grounds of review raised by the application before her and rejected them. The federal magistrate held that the Tribunal did not have a duty to make inquiries of the kind claimed by the appellant and that it had not fallen into jurisdictional error. It was noted that there was no evidence that the Tribunal had refused to accept the appellant's documents. Accordingly, the ground of procedural fairness was also held not to be established. So far as this appeal is concerned, the submissions made by the respondent in a thorough and helpful outline of submissions must be upheld. 7 It is apparent that Barnes FM made no error in upholding the objection to competency. Section 477(1)(a) of the Act provides that an application to the Court under s 483A of the Act in respect of a privative clause decision must be made within 28 days of the notification of the decision. The application for review was filed on 16 June 2003, well outside the 28-day period commencing on 18 March 2003. In my view Barnes FM correctly held that the Court had no jurisdiction to hear the application. In any event, as I have mentioned, nothing has been said by the appellant in her oral submissions today which challenges that conclusion. 8 Furthermore, the Federal Magistrate correctly stated the law on jurisdictional error. The Tribunal is not required to initiate additional enquires beyond the material presented by the applicant (see Minister for Immigration and Multicultural and Indigenous Affairs v Applicant S (2002) 124 FCR 256, 257 at [1], per Whitlam J, 275 at [74] per Stone J, North J dissenting; Randhawa v Minister for Immigration and Ethnic Affairs (1994) 52 FCR 437, 443, 451; Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347, 348; Marshood v Minister for Immigration and Multicultural Affairs (2000) FCA 1536 at [13]). Plainly too, Barnes FM did not err in holding that there was no denial of procedural fairness by the Tribunal because in fact there was no evidence of any refusal or failure on the part of the Tribunal to accept any documents. 9 The appellant has entirely failed to make any possible ground of appeal, either that the Federal Magistrate erred in upholding the notice of objection to competency or on the question of jurisdictional error. The order made in the Federal Magistrates Court was therefore correct and inevitable. No error having been shown in that judgment, this appeal will be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate: Dated: 2 March 2004 The applicant appeared in person Counsel for the respondent: M N Allars

Solicitor for the respondent: Australian Government Solicitor

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