SZAMX v Minister for Immigration
[2004] FMCA 298
•10 May 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAMX v MINISTER FOR IMMIGRATION | [2004] FMCA 298 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in Nepal – judicial review application filed out of time – objection to the competency of the application upheld as no reviewable error disclosed. |
| Applicant: | SZAMX |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ732 of 2003 |
| Delivered on: | 10 May 2004 |
| Delivered at: | Sydney |
| Hearing date: | 10 May 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
The applicant appeared in person
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Sparke Helmore |
ORDERS
The notice of objection to competency filed on 21 July 2003 is upheld.
The application is dismissed as incompetent.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $3,000.
The applicant is to pay the setting down fee of $327 within 14 days or obtain a waiver.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ732 of 2003
| SZAMX |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
I have before me an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 24 July 2002 and handed down on 13 August 2002. The RRT affirmed a decision of a delegate of the Minister not to grant him a protection visa. The applicant is from Nepal and made claims of political persecution. Those claims were not believed. The applicant relies upon an application filed on 2 May 2003. That application states:
I would like to apply for a fair decision to be made on my application at the Federal Court. I would like to request that the Federal Court makes a fair decision on my application to make sure that I am protected. Please consider my claims carefully with the positive view.
The application was filed more than 28 days after the applicant was notified of the RRT decision. The applicant did not dispute before me today that he received the RRTs letter of notification dated 13 August 2002. The Minister relies upon notice of objection to the competency of the application filed on 21 July 2003.
It was not necessary for me to hear from Mr Reilly, for the Minister, in this matter. There is nothing on the face of the application that points to any jurisdictional error in the decision of the RRT. The applicant was ordered on 2 July 2003 to file an amended application and any evidence on which he proposed to rely on or before 30 September 2003. He has done neither.
The applicant told me from the bar table that he is unhappy with the decision of the RRT, which is understandable. He told me that due to his limited education he was not able to articulate well for the RRT his refugee claims. However, that does not point to any jurisdictional error. The record of the decision of the RRT indicates that the discussion between the presiding member and the applicant at the hearing before the RRT was quite extensive. I see nothing unfair about the RRT proceedings. Neither have I identified from my reading of the court book any jurisdictional error of any other kind.
In the circumstances, the decision of the RRT is a privative clause decision, and the objection to the competency of the appeal must be upheld. I will dismiss the application as incompetent.
On the question of costs, I am satisfied that costs should follow the event. Mr Reilly seeks an order for costs fixed in the sum of $3,500. This was, however, a very straight forward matter. The application is one which might have been disposed earlier on an application for summary dismissal if one had been made. There was nothing on the face of the application to enliven the jurisdiction of the Court. The applicant was in breach of court orders after the end of September last year. Nevertheless, the matter came before me today for hearing. In my view, an award of costs fixed in the sum of $3,000 would be ample recompense for the Minister.
I will order that the applicant pay the Minister's costs and disbursements incidental to the application, which I fix in the sum of $3,000. I also note that the applicant has failed to pay the setting down fee of $327 payable prior to the hearing of this matter. I will also order the applicant to pay that setting down fee within 14 days or obtain a waiver.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 12 May 2004
0
0
0