BRGAC of 2006 v Minister for Immigration, Multicultural and Indigenous Affairs [2007] FCA 223

FEDERAL COURT OF AUSTRALIA

BRGAC of 2006 v Minister for Immigration, Multicultural and Indigenous Affairs [2007] FCA 223 MIGRATION – consideration of a claim of error on the part of the Federal Magistrate in failing to find jurisdictional error on the part of the Refugee Review Tribunal. Decision Appeal dismissed. Migration Act 1958 (Cth) SAAP v Minister for Immigration and Multicultural Affairs (2005) 215 ALR 162 BRGAC OF 2006 v MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS QUD330 of 2006

GREENWOOD J

22 FEBRUARY 2007

BRISBANE IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD330 of 2006

BETWEEN: BRGAC OF 2006

Appellant

AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: GREENWOOD J

DATE OF ORDER: 22 FEBRUARY 2007

WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. Leave be granted to amend the title of the respondent Minister to 'Minister for Immigration and Citizenship'. 2. Leave be given to join the Refugee Review Tribunal as a second respondent in the proceeding. 3. The appeal is dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QUD330 OF 2006

BETWEEN: BRGAC OF 2006

Appellant

AND: MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

JUDGE: GREENWOOD J

DATE: 22 FEBRUARY 2007

PLACE: BRISBANE

EX TEMPORE REASONS FOR JUDGMENT 1 I have before me an appeal by which the applicant for a protection visa appeals from a decision of Federal Magistrate Baumann on 1 August 2006, by which his Honour dismissed the appellant's application for review of a decision of the Refugee Review Tribunal on 2 March 2006. The Tribunal's decision affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant the appellant a protection visa. The appellant failed to appear before the court this morning. The respondent elected to deal with the matter on the merits rather than in default of appearance. The grounds of appeal before this court are set out at page 148 of the Appeal Book, and they are: '1. well-founded fear; 2. protection obligation; 3. error in judgment.' 2 The reference to the 'error in judgment' on the part of Federal Magistrate Baumann must be taken to mean that his Honour erred by failing to find jurisdictional error on the part of the Tribunal. The background facts and circumstances are set out comprehensively in the reasons of the Tribunal, and I particularly refer to pages 4, 5 and 6 of the Tribunal's reasons, which are contained at pages 129, 130 and 131 of the Appeal Book. 3 One of the background facts of significance in this particular matter is that the Tribunal invited the appellant to attend before the Tribunal and put before the Tribunal any evidence upon which he may seek to rely. The appellant indicated to the Tribunal that he would attend such a hearing, but failed to do so. In the proceedings before Federal Magistrate Baumann, the appellant was ordered to file a written outline of submissions 14 days prior to the hearing, and also failed to do so. And the appellant has failed to appear before the court this morning. 4 There is, no doubt, consistent with authority, that the Tribunal was entitled to proceed to determine pursuant to s 426A of the Migration Act 1958 (Cth) the matters before it, upon the failure of the appellant to appear at the hearing. The appellant has failed to demonstrate any foundation for any jurisdictional error on the part of the Tribunal, and in consequence, has failed to establish that Federal Magistrate Baumann fell into error by failing to find jurisdictional error on the part of the Tribunal. 5 Accordingly, the appeal must necessarily be dismissed with costs. 6 Leave is given to amend the title of the respondent Minister to 'Minister for Immigration and Citizenship'. Leave is given to join the Refugee Review Tribunal as a second respondent consistent with the decision of the High Court in SAAP v Minister for Immigration and Multicultural Affairs (2005) 215 ALR 162. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.