SZBZW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 72

FEDERAL COURT OF AUSTRALIA

SZBZW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 72 SZBZW and SZBZX v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 1532 of 2004 BRANSON J 8 FEBRUARY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1532 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBZW

FIRST APPELLANT

SZBZX

SECOND APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 8 FEBRUARY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1532 of 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZBZW

FIRST APPELLANT

SZBZX

SECOND APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 8 FEBRUARY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 On 8 February 2005 I ordered that this appeal be dismissed with costs. These are my reasons for making those orders. 2 On 21 October 2004 the appellants instituted an appeal against a judgment of the Federal Magistrates Court dated 1 October 2004. By that judgment the appellants' application for judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') was dismissed with costs. The ground on which the application for judicial review was made to the Federal Magistrates Court was that the Tribunal's decision was affected by jurisdictional error in that the hearing conducted by the Tribunal was so short that the appellants did not have a real opportunity to present their case. 3 The appellants had the benefit of legal representation before the Federal Magistrates Court. The reasons for judgment of the learned Federal Magistrate, Lloyd‑Jones FM, record that the appellants conceded that the reasoning of the Tribunal does not disclose jurisdictional error. However, the appellants argued that the Tribunal member should have done more to elicit details from the first appellant, who represented himself, his wife and their children before the Tribunal. No evidence was tendered to the Federal Magistrates Court identifying further material or submissions that the appellants wished to place before the Tribunal. Lloyd‑Jones FM found that no jurisdictional error affecting the decision of the Tribunal had been demonstrated. His Honour dismissed the application for review of the decision of the Tribunal. 4 The original notice of appeal to this Court did not identify any ground of appeal. An amended notice of appeal filed on 15 November 2004 identifies the following ground: 'His Honour erred in not dealing with the core issue that the purported decision of the Tribunal Officer was infected by a jurisdictional error of BIAS. The "12 minute" hearing raises the question "whether, in all the circumstances, a fair minded lay observer with knowledge of the material objective facts, might entertain a reasonable apprehension that the Tribunal Officer might not bring an impartial or unprejudiced mind to the resolution of the question in issue" Webb v The Queen (1944) 181 CLR 41. This, amongst other sections of the tribunal hearing is a breach of the expressions of procedural fairness and natural justice on the part of the decision maker vested with a statutory power to make an administrative decision.' 5 On 16 November 2004 I conducted a directions hearing in respect of this appeal. The first appellant had earlier been granted leave to address the Court on behalf of the other appellants. Orders were made on that day for the preparation of the appeal for hearing and authorising my Associate to list the appeal for hearing. The orders made included an order that the appellants file and serve a written outline of submissions by 31 January 2005. The orders made were conditional on the Chief Justice not directing that the appeal be heard by a Full Court. The Chief Justice did not direct that the appeal be heard by a Full Court but directed that it be heard by a single judge. 6 By letter dated 15 December 2004 the appellants were advised that their appeal would be heard by a single judge on 8 February 2005. The appellants did not file and serve a written outline of submissions by 31 January 2005 or at all. 7 When the appeal was called for hearing the first appellant asked that the hearing be adjourned to enable him to seek legal advice. He said, in answer to a question from me, that he had not earlier sought legal advice because he was relying on obtaining help from a friend, but he had discovered approximately one month ago that his friend had returned to Fiji. No explanation was offered for his not having sought legal advice during the month immediately preceding the listed hearing date. The respondent opposed the grant of an adjournment. 8 No evidence was placed before me in support of the adjournment application. I was not satisfied that the adjournment sought would lead to the appellants obtaining legal assistance in respect of this appeal. Taking into account my lack of satisfaction in this regard together with the date on which the decision under appeal was pronounced, the length of time that has passed since the appellants learnt of the appeal hearing date, the apparent weakness of the only ground of appeal and the unsatisfactory explanation offered by the first appellant for not having sought legal advice earlier, I did not consider that the interests of justice would be served by my granting the adjournment sought. The application for an adjournment was refused. 9 The first appellant advanced only limited submissions in support of the ground set out in the amended notice of appeal. He was unable to indicate, when I asked him to do so, what more the Tribunal member could have done to enable him to say all that he wished to say in support of the claim that he and his family were entitled to protection visas. He suggested that if he had been given a second hearing he might have been better able to present his claims and those of his family. I understood him by this to be suggesting that his mental state at the time of the hearing handicapped him in presenting his family's claims. However, he did not suggest, nor does the transcript of the hearing record, that he advised the Tribunal member of any difficulties that he might have been experiencing in presenting the appellants' case to the Tribunal. 10 The transcript of the Tribunal hearing reveals that the Tribunal member carefully outlined to the first appellant what it was that she needed to be satisfied of before the appellants could be granted protection visas. She asked the first appellant to tell her why he thought that he was a refugee. She sought details of the problems that he said that he and his family had experienced in Fiji. Having heard his response, she asked if there was anything else that the first appellant feared about returning to Fiji. She asked the first appellant if he wished to comment on the fact that she experienced difficulty in seeing that what he feared could be considered as persecution in the relevant sense. Additionally the transcript records the Tribunal member as saying near the end of the hearing: 'Okay. Those are all of the questions that I wanted to ask you. Is there anything else that you think you should tell me, anything that you think is relevant to your application that you haven't already mentioned? You don't have to say anything else. I just want to be sure that you have told me everything that you think I should know?'