Affairs

FEDERAL COURT OF AUSTRALIA

SZDKI v Minister for Immigration & Multicultural & Indigenous

Affairs [2006] FCA 280

MIGRATION – appeal from Federal Magistrate’s Court – earlier invalid invocation of jurisdiction of the Refugee Review Tribunal – appeal dismissed

Migration Act 1958 (Cth) s 430A

SZASD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 472 cited

SZDKI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 2193 OF 2005

CONTI J
22 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2193 OF 2005

BETWEEN:

SZDKI
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

CONTI J

DATE OF ORDER:

22 MARCH 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant to 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 2193 OF 2005

BETWEEN:

SZDKI
APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	CONTI J
DATE:	22 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a purported appeal from the judgment and orders of Mowbray FM handed down on 28 October 2005, whereby his Honour dismissed an application for review of a decision adverse to the appellant given by the Refugee Review Tribunal earlier on 5 April 2004.

2. The basis for the decision of his Honour was that the review application had been lodged ‘well out of time’, and that as a consequence there was no valid application for review placed by the appellant before the Tribunal, and accordingly the Tribunal’s determination to that effect was not ‘a decision on a review’ within s 430A of the Migration Act 1958 (Cth). As his Honour emphasised, the Tribunal’s role is to review a valid application, and is only authorised by statute to review a matter and make a decision in response thereto when it has received a valid application to that end.

3. Accordingly his Honour dismissed the application for review of the Tribunal’s decision, for reasons similar to those framed by Driver FM in SZASD v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 472 at [5].

4. The matter came before me by way of a so-called amended notice of appeal (NSD 2193 of 2005), the purported grounds of appeal being as follows:

   ‘1.The Honourable court failed to determine whether there was any jurisdictional error in the purported decision of the Tribunal.

   2.The appellant seeks leave to amend his appeal to challenge the delegate’s decision.

   3.The delegate of the Minister failed to have a regard to all of the information provided by the appellant.

   4.The delegate of the Minister breached procedural fairness and natural justice.’

5. No particularity of those grounds was articulated by the appellant in the notice of…