SZOTN v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 This judgment deals with an application for leave to appeal against a judgment of the Federal Magistrates Court of Australia ("the FMCA") (SZOTN v Minister for Immigration and Anor [2010] FMCA 1025). The judgment of the FMCA was delivered on 22 December 2010. It dismissed an application to the FMCA for judicial review of a decision of the second respondent ("the RRT") which, in turn, affirmed a decision of a delegate of the first respondent refusing a protection visa to the applicant. 2 The applicant is a citizen of India. He arrived in Australia on 10 February 2010 and applied for a Protection (Class XA) visa on 24 March 2010. He was invited to attend an interview at the Department of Immigration and Citizenship on 11 August 2010 to discuss the claims he made in his application for a protection visa. He did not attend the interview and did not contact the Department to provide a reason for his non-attendance. His application was assessed, therefore, on the basis of the material which he provided with his application. The delegate concluded that the claims made by the applicant, in support of his application, were "vague and unsubstantiated". The delegate identified a number of questions which would have been discussed with him had he attended for an interview. The delegate observed that the little information provided by the applicant in support of his claims was not supported by independent country information. As the delegate was not able to be satisfied that the claims made by the applicant in his written application were true claims, and that he was deserving of protection as a refugee, his claim for a protection visa was, on 11 August 2010, refused. 3 On 1 September 2010 the applicant applied to the RRT for review of the delegate's decision. The review application did not contain any new claims or information which were not before the delegate. On 13 September 2010 the RRT wrote to the applicant advising him that it had considered all the material then before it but was unable to make a decision favourable to the applicant based on that information alone. The applicant was invited to give oral evidence and present arguments in support of his application at a hearing of the RRT on 11 October 2010. It should have been apparent to the applicant that if he did not appear before the RRT his claims would be rejected by it, as they had been by the delegate. On 6 October 2010 the applicant advised the RRT that he did not wish to take part in the hearing. The decision of the RRT, therefore, was made on the information provided to it and, as foreshadowed to the applicant on 13 September 2010, his claim was rejected. 4 The RRT, in its decision which was handed down on 13 October 2010, set out the reasons why the written claims made by the applicant were insufficient to sustain his claim for a protection visa. The RRT observed that: The applicant's statement contains a number of unsubstantiated assertions that are interrelated, yet lacking in essential details. 5 The RRT set out a number of matters about which it had "insufficient and/or unclear information". The RRT went on to state that "[o]n the limited evidence before it, and without further details and clarifications" it was not satisfied that the applicant's claims were made out. The decision of the delegate was affirmed. 6 On 9 November 2010 the applicant made an application to the FMCA for judicial review of the decision of the RRT. The provisions of the Migration Act 1958 (Cth) ("the Migration Act") preclude any review by the FMCA of the merits of the RRT decision. In order for the application to the FMCA to succeed it would be necessary for the applicant to show that the RRT had made a jurisdictional error in its disposition of the application for review of the delegate's decision. The grounds for the application for judicial review made to the FMCA were stated in the following terms: 1. The applicants case was not dealt in accordance with the Refugee laws 2. The RRT failed to apply the applied law in the matter, there is a legal error 3. The case of the applicant suffers from the jurisdictional errors. 7 Those grounds were insufficient, without greater particularisation, to identify a jurisdictional error which would enliven the powers of the FMCA to interfere with the decision of the RRT. 8 The applicant appeared before the FMCA on 8 December 2010 and sought an adjournment. He was granted an adjournment for two weeks. On 15 December 2010 he filed an "amended application". This document contained a mixture of factual assertions and argument. In its judgment the FMCA concluded that the document did nothing to assist the applicant's case before the FMCA. In my view, that assessment was correct. First, as I have said, assessment of the sufficiency of the material before the RRT, to support a claim by the applicant that he should be granted a protection visa, was a task committed to the RRT by the Migration Act. Assessment by the RRT of the merits of the applicant's claims was not reviewable in the FMCA. Secondly, no jurisdictional error had been made by the RRT in proceeding to make a decision on the material before it in circumstances where the applicant had declined to appear to give oral evidence to the RRT. Thirdly, consideration of the terms of the "amended application" provided no other basis for a conclusion that the RRT, in its assessment of the applicant's claims, committed jurisdictional error by reason of a misunderstanding of the nature and extent of its jurisdiction or otherwise. That issue is sufficiently discussed in the judgment of the FMCA, referred to earlier. Regulation 44.12 of the Federal Magistrates Court Rules 2001 ("the FMCA Rules") permits the FMCA to dismiss an application of the kind commenced by the applicant if it is not satisfied that the application has raised an arguable case (Reg 44.12(1)(a)). The FMCA rightly concluded that the "amended application" did not raise any arguable case. 9 Dismissal of an application under Reg 44.12(1)(a) of the FMCA Rules for the reason that the application has not raised an arguable case for relief is an interlocutory order (Reg 44.12(2); see also SZOJE v Minister for Immigration and Citizenship [2010] FCA 1405 at [12]-[15]). Accordingly, as the application to this Court accepts, leave to appeal against the judgment of the FMCA is required. 10 The application to this Court for leave to appeal against the judgment of the FMCA was accompanied by an "affidavit" sworn by the applicant which in very substantial measure simply repeated the written claims which were dealt with by the delegate and considered by the RRT. The applicant requested that his application for leave to appeal be dealt with without an oral hearing. That course has been followed. Despite a direction that he file a written submission in support of his application, the applicant failed to do so. 11 Proceedings in this Court are concerned with whether an error has been made by the FMCA. That question, in turn, depends on whether, contrary to the conclusion of the FMCA in a particular case, the RRT has (or has not) made a jurisdictional error in the discharge of its functions. This Court does not have power, any more than did the FMCA, to review the merits of the decision that the applicant should not be granted a protection visa. There is no basis, in the circumstances of this case, to conclude that the RRT committed a jurisdictional error. In particular, the RRT was entitled to deal with the applicant's claims on the basis of the material which the applicant elected to put before it and, like the delegate before it, to conclude that those claims were not made out. 12 There is no basis upon which a conclusion would be available that the FMCA erred in dismissing the applicant's application to that Court for judicial review or in deciding that there was no arguable case raised by the application to the FMCA. There is no prospect, therefore, if leave to appeal was granted, that an appeal would succeed. 13 In the circumstances, the appropriate course is to refuse the application for leave to appeal. There is no reason why costs should not follow that result. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.