Affairs

[2006] FCA 382

FEDERAL COURT OF AUSTRALIA

SZGOX v Minister for Immigration & Multicultural & Indigenous

Affairs [2006] FCA 382

MIGRATION – no special or particular principle arising

SZGOX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 2383 OF 2005

CONTI J
6 APRIL 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2383 OF 2005

BETWEEN:	SZGOX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	6 APRIL 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application for extension of time within which to appeal the decision of the Federal Magistrates Court handed down on 8 November 2005 be refused.

2.   The applicant to pay the respondent’s costs assessed at $1000.

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 2383 OF 2005

BETWEEN:	SZGOX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI
DATE:	6 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The present application filed on 1 December 2005 is for an extension of time in which to file and serve a notice of appeal from the judgment of Smith FM delivered on 8 November 2005, whereby his Honour found that the decision of the Refugee Review Tribunal handed down on 17 June 2005 adversely to the present applicant was not affected by jurisdictional error.

2. The background to that application is that the applicant had arrived in Australia as a visitor from China in November 2004, and had been taken into detention some weeks after her arrival for what were considered to be breaches of her visa.  Whilst in detention, she engaged an experienced firm of solicitors to prepare and lodge a protection visa application, which duly occurred on 14 February 2005.  Her claim was that she was a national of China who had left that country to seek protection in Australia because she was inhibited in China from practicing Falun Gong.  Her visa application was refused by the Minister’s delegate on 10 March 2005, and her application to the Refugee Review Tribunal for review of that decision was subsequently refused on 17 June 2005, pursuant to a decision bearing date 16 June 2005.

3. Thereafter the applicant sought judicial review of the Tribunal’s decision from the Federal Magistrates Court, and upon the basis of comprehensive reasons for judgment, Federal Magistrate Smith dismissed the application upon the basis that the Tribunal’s decision was not affected by any jurisdictional error, and was thus a ‘privative clause decision’ within s 474(1) of the Migration Act 1958 (Cth). In the course of those reasons extending over 47 paragraphs, his Honour undertook a thorough review of the background to the application and of the consequential findings which he thereupon made, and also of the legal consequences of those findings. In those proceedings, the applicant was legally represented.

4. The applicant filed a supporting affidavit in this Court, presumably handwritten by another person on her behalf, which sought to explain the reasons for her delay in making the present application, and in which she detailed her practice of the Falun Gong religion in China.  In the present proceedings, the applicant was not legally represented.  When the present proceedings were called on for hearing, the applicant was unable to articulate virtually anything by way of address to the Court, because of her emotional and tearful state and condition.  I have no reason to believe, in that regard, that her condition of distress was otherwise than entirely genuine.  Following upon my adjourning the Court to hear another matter and thus to allow the applicant some time for composure, the applicant was still unable to articulate orally anything approaching a viable basis for an appeal against the Federal Magistrate’s decision, assuming that leave to appeal out of time might be granted.  She was accompanied at the hearing by a female person who appeared to be an acquaintance.

5. The outcome was that the Court was left with no viable basis having been articulated as to why the reasons for decision of the Federal Magistrates Court were otherwise than soundly conceived.  All in all, it was an emotional, if not also sad occasion for the Court to entertain, but I could not do otherwise than dismiss the application and make an adverse order as to costs.  The reasons for judgment of Smith FM were soundly articulated and reasoned, and no error in that reasoning was, in my opinion, exposed.  Orders of the Court were made accordingly.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti J.

Associate:

Dated:             6 April 2006

Applicant:	Appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 March 2006
Date of Judgment:	6 April 2006