Affairs

[2005] FCA 612

FEDERAL COURT OF AUSTRALIA

SZDRA v Minister for Immigration & Multicultural & Indigenous

Affairs [2005] FCA 612

MIGRATION – no issue of principle

SZDRA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 220 OF 2005

CONTI J
12 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 220 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDRA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	12 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant to pay the respondent’s costs fixed at $2,500.

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 220 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDRA APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	12 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The background to the present purported proceedings may be summarised as follows:

   (i)the appellant arrived in Australia on 15 October 2003; on 14 November 2003 he made application to the Department of Immigration and Multicultural and Indigenous Affairs for a protection (Class XA) visa; that application was refused by the Minister’s delegate on 28 November 2003;

   (ii)the appellant thereafter sought a review of that decision of refusal from the Refugee Review Tribunal; that application was in turn refused by the Tribunal in a decision handed down on 11 May 2004;

   (iii)the appellant then sought a review of the Tribunal’s decision by the Federal Magistrate’s Court; that application for review was dismissed by a Federal Magistrate on 28 January 2005, and the appellant was ordered to pay the costs of the application; he was not legally represented at the hearing.

2. Against that background, the appellant nevertheless filed a notice of appeal to this Court from the Federal Magistrate’s decision.  The purported grounds of appeal were stated as follows (read literally):

   ‘GROUNDS

   2. a, The Honourable federal Magistrate has not applied s 39B of the Judiciary action of the Migration Act.

   b,        Thorough and proper application of sec 91R(1) 91(R)(1)(b) s 91R1(c) sec 91R(2) S 91R1(a) of the Migration Act 1958 have not been done by the Honourable Federal Magistrate in his decision.

   c,        Justice has not been rendered to me in accordance with the Migration Act 1958 and Convention Regulations.’

3. Particularity of those grounds of appeal was purportedly provided by an affidavit of the appellant filed in the Court registry on 16 February 2005.  The appellant claimed to have been born in India and to be a Hindu by religion.  In the circumstances it suffices to record that the handwritten material comprising that affidavit does not disclose any viable basis for appeal against the decision of the Federal Magistrate.

4. The proceedings were listed for hearing this morning in the Federal Court of Australia and the appellant did not appear when the proceedings, and in particular the appellant’s name and procedure insignia, were duly called outside the Court.

5. Counsel for the Minister submitted that the Federal Magistrate correctly dismissed the appellant’s application for judicial review.  He summarised the decision and the findings as follows:

   ‘(a)the Tribunal’s decision turned entirely upon findings of fact (Judgment at [27]).

   (b)the applicant’s credibility was an issue for determination by the Tribunal (Judgment at [29]).

   (c)it was not the function of judicial review to reconsider the relative merits of each piece of information to search for an alternate outcome (Judgment at [30]).

   (d)want of logic in the Tribunal’s reasons was not an available ground of review (Judgment at [31]).

   (e)he had not been able to identify any ground that the Tribunal had committed a jurisdictional error (Judgment at [33]).’

6. I accept the correctness of those submissions, which accord with the substance relevantly of the material contained in the Green Book, and with the various decisions below which I have identified.  No jurisdictional error is apparent therein.

7. Accordingly I dismiss the appeal, and order the appellant to pay the Minister’s costs assessed by the Minister at $2,500.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             13 May 2005

The Applicant did not appear
Counsel for the Respondent:	A McInerney
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	12 May 2005
Date of Judgment:	12 May 2005