SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225

FEDERAL COURT OF AUSTRALIA

SJSB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 225 SJSB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S16 of 2004 RYAN, JACOBSON & LANDER JJ 18 AUGUST 2004 ADELAIDE (heard by Video link to SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S16 of 2004

On appeal from a Judge of the Federal Court of Australia

BETWEEN: SJSB

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGES: RYAN, JACOBSON & LANDER JJ

DATE OF ORDER: 18 AUGUST 2004

WHERE MADE: ADELAIDE (heard by Video link to SYDNEY)

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs, to be taxed in default of agreement. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S16 of 2004

On appeal from a Judge of the Federal Court of Australia

BETWEEN: SJSB

Appellant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGES: RYAN, JACOBSON & LANDER JJ

DATE: 18 AUGUST 2004

PLACE: ADELAIDE (heard by Video link to Sydney)

REASONS FOR JUDGMENT

The court: 1 This is an appeal from orders of Mansfield J pronounced on 22 January 2004 dismissing an application under s 39B of the Judiciary Act 1903 (Cth) to quash a decision of the Refugee Review Tribunal ("the Tribunal") made on 6 March 2003. The Tribunal had affirmed a decision of a delegate of the respondent Minister refusing to grant the appellant a protection visa. 2 The appellant is a Sri Lankan national who arrived in Australia on 3 March 2001 on a student visa. He applied for a protection visa on 6 November 2001. The learned primary Judge noted that the basis of the appellant's claim to be a refugee as defined in Art 1A(2) of the Refugees' Convention as amended by the Refugees' Protocol ("the Convention") had been set out in these terms in his application for a protection visa; 'I am a Sinhalese Buddhist National of Sri Lanka. My father has been a native doctor for the last 30 years. He was attached to a hospital in Puttalam and also treated private patients. Among his patients he had Singhalese and Tamils. In Puttalam area, in the eastern suburbs of Sri Lanka, he treated Tamils and later he was suspected of assisting the LTTE. He was arrested in Colombo, together with me. I will send a detailed statement of claim within three weeks' time.' 3 His Honour further noted that the appellant had gone on to claim that he would be arrested and tortured if he were returned to Sri Lanka because he has been suspected of supporting the LTTE. Despite the appellant's undertaking to send a "detailed statement of claim" within three weeks, no further material was adduced in support of his claim. 4 Although the Tribunal was required to conduct a rehearing of the application, the appellant did not avail himself of the opportunity, which arose on his application to the Tribunal for review of the delegate's decision, to amplify the material in support of his application. As the learned primary Judge found, the Tribunal, on 30 January 2003, in accordance with s 425(1) of the Migration Act 1958 (Cth), ("the Act"), invited the appellant to appear before the Tribunal to give evidence and present arguments in relation to the decision under review. However, the appellant did not respond to that invitation. 5 Accordingly, the Tribunal proceeded under s 426A of the Act to make a decision on the review without taking any further action to allow, or enable, the appellant to appear before it. Section 426A provides; '(1) If the applicant: