SZIDC v Minister for Immigration and Citizenship [2007] FCA 1813

FEDERAL COURT OF AUSTRALIA

SZIDC v Minister for Immigration and Citizenship [2007] FCA 1813

SZIDC v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REFUGE TRIBUNAL NSD 813 OF 2007

NORTH J

8 NOVEMBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 813 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIDC

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REFUGE TRIBUNAL

Second Respondent

JUDGE: NORTH J DATE OF ORDER: 8 NOVEMBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed; 2. The appellant pay the first respondent's costs of the appeal fixed at $2500. 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 813 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZIDC

Appellant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REFUGE TRIBUNAL

Second Respondent

JUDGE: NORTH J

DATE: 8 NOVEMBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 Before the Court is a notice of appeal filed by the appellant against the judgment of the Federal Magistrates Court, delivered on 19 April 2007. Before the Federal Magistrate was an application to review a decision of the Refugee Review Tribunal handed down on 8 November 2005. The Tribunal affirmed the decision of a delegate of the first respondent, the Minister for Immigration and Citizenship, not to grant a protection visa to the appellant. 2 The appellant claimed that he feared persecution from the Hindu community and the Rashtriya Swayamsevak Sangh (RSS), a Hindu nationalist organisation, because he promoted atheism. The claims of the appellant and the findings of the Tribunal are set out in the judgment of the Federal Magistrate, at [3] to [8] and it is not necessary to repeat them. 3 In summary, the appellant was invited to attend a hearing before the Tribunal, but did not do so. As a consequence, the Tribunal was not able to be satisfied of the veracity of his claims and rejected his application. The application to the Federal Magistrates Court was made out of time, in circumstances set out in the judgment of the Federal Magistrate at [10] to [14]. The Federal Magistrate was satisfied, however, that the appellant had sought an extension of time for the making of an application to the Federal Magistrates Court. The Federal Magistrate then considered whether it was in the interests of the administration of justice to grant an extension of time under s 477(2) of the Migration Act 1958 (Cth). 4 The Federal Magistrate properly considered whether the decision of the Tribunal revealed any jurisdictional error. The jurisdictional errors, which the appellant alleged before the Federal Magistrate, were as follows: (1) The Tribunal did not give the applicant the opportunity to appear before it. (2) The Tribunal's decision was not supported by proper enquiry. (3) A failure of state protection in India. (4) An unparticularised assertion that the Tribunal failed to take prescribed steps pursuant to 424A of the Migration Act. The Federal Magistrate rejected each of these grounds. 5 The appellant filed a notice of appeal in this court which sought to identify errors in the judgment of the Federal Magistrate, which may be summarised as follows: (1) The Federal Magistrate failed to find that the Tribunal was biased or had committed other legal error, which amounted to a denial of procedural fairness and natural justice. (2) The Federal Magistrate wrongly failed to accept the claim of non-attendance at the hearing before the Tribunal, which the appellant contended was a result of his fear of the authorities. 6 The notice of appeal also raised an argument that the Federal Magistrate erred by concluding that the failure of the appellant to attend the Tribunal hearing almost inevitably led to a dismissal of the application in violation of obligations under s 430 of the Act. 7 At the hearing of the appeal, the appellant was asked to explain the grounds of his complaint against the judgment of the Federal Magistrate. On this occasion, he relied on two grounds, namely that he did not receive the letter of invitation to attend the Tribunal hearing, and that he received a copy of the decision too late to be able to apply for review to the Federal Magistrates Court within the time permitted. 8 The question before me is whether the Federal Magistrate erred in refusing the application for an extension of time within which to appeal to the Federal Magistrates Court. The central argument raised by the appellant at the hearing of the appeal was that he did not receive the letter inviting him to attend the Tribunal hearing. This same argument was dealt with by the Federal Magistrate at [19] to [26]. The Federal Magistrate held that the letter of invitation was sent to the appellant's authorised recipient. By operation of s 441G(2) of the Act, the provision of the invitation to the authorised recipient is taken to be service of the document on the applicant. I agree with the reasoning of the Federal Magistrate on this issue. 9 The second ground agitated by the appellant on the appeal, namely that he was not able to apply for review in time because of the circumstances was addressed by the Federal Magistrate. The application was rejected because the Federal Magistrate found no jurisdictional error in the Tribunal's decision, and hence there was no utility in granting the extension of time. The Federal Magistrate was correct. This ground of appeal is rejected. 10 Insofar as the appellant might seek to rely on the grounds set out in the notice of appeal, the appellant has not demonstrated that the Federal Magistrate erred in determining the arguments put before him. To the extent that the notice of appeal seeks to raise new arguments not raised before the Federal Magistrate, those arguments could not be raised except with leave. For example, the notice of appeal seems to assert that the Tribunal was biased. This argument was not raised before the Federal Magistrate. It is not particularised and there is no basis in the papers before the Court to suggest any grounds for a finding that the Tribunal was biased. There would be no grounds for granting leave to raise these new arguments on appeal. 11 Consequently, the appeal against the judgment of the Federal Magistrate must be dismissed. In the event that the order of the Federal Magistrate was an interlocutory order, I would for the same reasons refuse leave to appeal. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.