SQJB v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1152

FEDERAL COURT OF AUSTRALIA

SQJB v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1152

SQJB & SQKB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

SAD 241 of 2004

MANSFIELD J
1 AUGUST 2005
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 241 OF 2004

BETWEEN:

SQJB
FIRST APPLICANT

SQKB
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

1 AUGUST 2005

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay to the respondent her costs of the application to be taxed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 241 OF 2004

BETWEEN:

SQJB
FIRST APPLICANT

SQKB
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	MANSFIELD J
DATE:	1 AUGUST 2005
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This application is for an extension of time to file and serve a notice of appeal.  The judgment sought to be appealed from is a decision of Selway J given on 21 November 2003.  His Honour dismissed an application for orders to set aside a decision of the Refugee Review Tribunal (the Tribunal) of 28 May 2002.  The Tribunal had affirmed a decision of a delegate of the respondent refusing to grant to the first applicant (the principal applicant) and her son a protection visa.

2. They had applied for a protection visa under the Migration Act1958 (Cth) (the Act) on 30 January 2001 shortly after their arrival in Australia. The dismissal of the application by Selway J was by reason of a failure of the applicants to comply with directions of the Court, directed to ensuring that their application before the Court could properly be heard.

3. The present application is expressed in an amended application filed on 11 January 2005.  It is accompanied by a draft notice of appeal.  The grounds of appeal in that draft notice are general and assertive.  They do not identify clearly any error on the part of the Tribunal which might indicate jurisdictional error on its part.  On 11 January 2005 the applicant filed an affidavit of the principal applicant in support of the amended application.  It did not contain any allegation of jurisdictional error on the part of the Tribunal, or offer any explanation for the delay between the judgment of Selway J and the present application, which was first instituted on 22 November 2004, some 12 months after the decision sought to be appealed from.

4. There is still no explanation for that delay in the material presented by the applicants.  Material presented by the respondent however indicates that, some eight months after the decision of Selway J, the applicants applied again to set aside the decision of the Tribunal in the Federal Magistrates Court.  That application was dismissed on 10 November 2004.  The applicants did not disclose that material to the Court.

5. On the hearing today the applicants, through the principal applicant, complained that she did not have an opportunity to attend the Tribunal hearing because her migration agent had not notified her of it.  On the information before the Court that does not, and by itself cannot, demonstrate jurisdictional error on the part of the Tribunal.  The Tribunal is obliged to invite an applicant to appear before it, but there are provisions in the Migration Act 1958 (Cth) and in the Migration Regulations as to how that notice should be given. There is nothing before the Court to indicate that the Tribunal did not give that notice to the applicants in the way it was obliged to do so. If the invitation to attend the hearing is given in the required way, the fact that for whatever reason it did not come to the appellants’ attention does not involve jurisdictional error on the part of the Tribunal.

6. The applicant in a written submission of 2 March 2005 complained that their representation at the hearing before Selway J was also flawed.  That matter was raised shortly before the occasion of the first hearing of this application.  The hearing was then adjourned so that the solicitor's file of their former solicitor could be subpoenaed.  It was duly brought into Court.  It has been available for inspection by the applicants.  Following that process nothing further has been put before the Court by way of evidence to explain why the orders of the Court were not then complied with.  That matter was not developed by the applicants in their submissions today.

7. Apart from those two matters, the only other matter raised by the applicants today was a general reiteration of facts put before the Tribunal and the assertion that the Tribunal got the facts wrong when it found that the applicants would not face a real chance of persecution if they were to return to Fiji.  The Court cannot rehear the decisions of the Tribunal on the merits.  It does not have the power to do so.  The claim that the Tribunal reached a wrong conclusion of fact does not of itself show an arguable case of jurisdictional error on the part of the Tribunal.

8. In those circumstances, I see no reason why I should exercise the discretion to extend the time within which to appeal from the decision of Selway J.  The proposed appeal is not shown to have any arguable prospect of success, both because there is nothing to indicate jurisdictional error on the part of the Tribunal and because there is no identified arguable error on the part of the judge at first instance.  In addition I do not consider that there is any adequate explanation for the delay.

9. Accordingly the application is refused, with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             22 August 2005

Counsel for the Applicants:	The applicants appeared in person by the principal applicant.
Counsel for the Respondent:	K Tredrea
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	1 August 2005
Date of Judgment:	1 August 2005