SZJJO v Minister for Immigration and Citizenship [2007] FCA 668

FEDERAL COURT OF AUSTRALIA

SZJJO v Minister for Immigration and Citizenship [2007] FCA 668 SZJJO v MINISTER FOR IMMIGRATION AND CITIZENSHIP NSD 2536 OF 2006

BRANSON J

2 MAY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 2536 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJJO

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: BRANSON J DATE OF ORDER: 2 May 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The name of the respondent be changed to Minister for Immigration & Citizenship. 2. The application for leave to appeal be dismissed. 3. The applicant pay the first respondent's costs fixed in the amount of $800.00. 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 2536 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZJJO

Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

JUDGE: BRANSON J

DATE: 2 May 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1 The applicant, a citizen of India, applied to the then Department of Immigration and Multicultural Affairs for a protection visa on 24 April 2006. That application was refused by a delegate of the Minister on 23 May 2006. The Refugee Review Tribunal affirmed that decision on 2 August 2006, and the applicant then sought review of the Tribunal's decision in the Federal Magistrates Court. The learned Federal Magistrate dismissed the application to show cause on 4 December 2006. The applicant then filed an application for leave to appeal in this Court on 28 December 2006.

Application for leave 2 Having considered both the Federal Magistrate's decision and the Tribunal's decision, and having heard from the applicant in Court today, I am satisfied that any appeal that the applicant were to make against the decision of the Federal Magistrates Court would necessarily fail. 3 The applicant was sent an invitation from the Tribunal inviting him to attend a hearing and he did not attend. Although the applicant informed the Court today that he did not receive the invitation until the day of the Tribunal hearing, there is nothing before me which suggests that the letter was not sent to him at his last address on or about the date which it bears, which is approximately a month earlier than the scheduled hearing date. At my request, the legal representative of the Minister made inquiries with the Tribunal today to see what the Tribunal's records show about the posting of that letter. The Tribunal provided to the Court, via the Minister's representative, a page taken from a computer screen which confirms the posting of the letter to the applicant on the date which the letter bears. The applicant himself acknowledged that having looked at the letter he observed that it was sent to him at the appropriate address. He has also advised me that he took no steps to alert the Tribunal to his late receipt of its invitation to attend. I therefore agree with the learned Federal Magistrate that the Tribunal was plainly entitled to proceed to determine the matter without hearing from the applicant. 4 The Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention because of the view which it took of the nature of the claims made by him. The Tribunal found that those claims were lacking in essential detail. Not having the opportunity to question the applicant and hear further from him at a hearing, the Tribunal was not satisfied that he had a well-founded fear of persecution for a Convention reason should he return to India. 5 In my view, no error attends the decision of the learned Federal Magistrate to dismiss the application as his Honour did on the ground that there was no arguable case for relief. The application for leave to appeal from the judgment of the Federal Magistrates Court is therefore refused. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.