SZDTN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 175

FEDERAL COURT OF AUSTRALIA

SZDTN v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 175

MIGRATION – further evidence rejected – no issue of principle arising

Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 425A, s 441A(2)(a) SZDTN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1764 OF 2005 CONTI J 3 MARCH 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1764 OF 2005

BETWEEN: SZDTN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 3 MARCH 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. Appeal from the decision of Emmett FM made on 8 September 2005 be dismissed. 2. The respondent pay the Minister's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1764 OF 2005

BETWEEN: SZDTN

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: CONTI J

DATE: 3 MARCH 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT

Background to the appeal to the Federal Magistrate's Court 1 The appellant is Arabic Lebanese by nationality. He was born in Lebanon on 1 October 1961. He arrived in Australia on 14 February 2000. On 10 May 2000 he applied for a protection visa. In his application he recorded that he left Lebanon '… on a holiday and for the purpose of visiting my sister, who lives in Sydney'. He asserted in his protection visa application inter alia as follows: '… I quite often would have intelligence or security personnel knock on my door and take me in for questioning usually to the Army base at the Museum area of Beirut and… every time the door rang I would be concerned that army or intelligence people will be coming to take me in for questioning because of my role in the Lebanese Forces Party, and militia during the war. I fear I will be arrested again without an arrest warrant, as usual, by the Lebanese Authorities. This time I also fear that Syrian intelligence will want to question me as well. Usually, in previous times I was arrested by the Lebanese authorities. I would be intimidated, threatened and sometimes beaten. Almost always after every time I would be taken in for questioning I would be forced to sign a statement declaring I would not participate in any political activity.' 2 On 21 June 2000 a delegate of the Minister refused to grant the appellant a protection visa. On 19 July 2000, the appellant filed an application for review of the Minister's decision. On 19 July 2000, the Tribunal wrote to him and informed him that if he had any new documents or written evidence, he should send the same to the Tribunal. He was informed by the same communication that it was very important that he inform the Tribunal in writing if he changed his telephone number, home address or his address for service. By letter dated 3 April 2002, he was invited by the Tribunal to attend a hearing on 2 May 2002, being thereby informed that the Tribunal was not prepared to make a decision favourable to him on the material then before it. A response was requested by 19 April 2002. However the Tribunal's letter was returned marked 'Return to Sender'. The letter of notification was also sent to the appellant's adviser. 3 The Tribunal recorded the following history concerning that application: 'On 3 April 2002 the Tribunal wrote to the [appellant] advising that it had considered all the papers relating to his application but it was unable to make a favourable decision on that information alone. The Tribunal invited the [appellant] to give oral evidence and present arguments at a hearing on 2 May 2002. The [appellant] was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. No response was received. The Tribunal undertook a number of checks in an attempt to locate the [appellant], but was unable to obtain any more up to date address or other contact details. On 29 April 2002 the [appellant's] adviser informed the Tribunal that she was experiencing difficulties in contacting the [appellant]. She confirmed, however, that the [appellant] had received the Tribunal's invitation to give oral evidence. The [appellant] did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the [appellant] to appear before it.' 4 Its conclusions were in essence as follows: 'In sum, in view of the lack of detail contained in the [appellant's] claims, the Tribunal cannot make findings of fact in relation to his claims. Based on the evidence before it, the Tribunal is unable to be satisfied that the [appellant] has been persecuted for a Convention reason in the past, or that there is a real chance that he would be persecuted for a Convention reason in the reasonably foreseeable future. The Tribunal, therefore, cannot be satisfied that the [appellant] has a well-founded fear of persecution for a Convention reason. Accordingly, it cannot be satisfied that he is a refugee under the Refugees Convention.' 5 The Tribunal thereupon proceeded to conduct its review and determined in summary that it was not satisfied that the appellant was being pursued by the Lebanese intelligence, following upon an alleged incident said to have occurred on 21 April 2000, the Tribunal observing in that regard inter alia that he had no difficulties in obtaining travel documents to Australia. The Tribunal found that the appellant lacked any viable basis for his protection visa application. 6 The appellant sought review of the Tribunal's decision by the Federal Magistrate's Court, by pursuant to s 39B of the Judiciary Act 1903 (Cth), by an application filed on 4 June 2004, and an amended application filed on 16 November 2004, on the ground of denial of any opportunity to be heard. On 4 June 2004, the appellant made application for judicial review of the Tribunal's decision to the Federal Magistrate's Court, upon the following bases: (i) he did not receive the Tribunal's invitation to the hearing, because the same had been apparently sent to the address provided by him in his review application, and not to his changed address which he asserted to have been notified to the Department on 23 November 2000; (ii) he was therefore denied procedural fairness on the footing of non-compliance with s 425A of the Migration Act 1958 (Cth) ('the Act').