SZAPL v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1141

FEDERAL COURT OF AUSTRALIA

SZAPL v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1141

SZAPL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1137 OF 2004

GYLES J
24 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1137 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZAPL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	24 AUGUST 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application for leave to appeal be dismissed. 

2.   The applicant pay the costs of the respondent.

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 1137 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	GYLES J
DATE:	24 AUGUST 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter the applicant arrived in Australia in July 1999.  His application for a protection visa was refused by a delegate of the Minister on 16 February 2000.  He sought review of that decision by the Refugee Review Tribunal.  The Tribunal made a decision dated 30 January 2002, notice of which was given on 21 February 2002, affirming the refusal.  Proceedings challenging that decision were not filed until 14 May 2003.  Those proceedings were disposed of by the Federal Magistrates Court on 5 July last.  The formal position is recorded in the reasons of the learned Federal Magistrate as follows:

   ‘For the reasons given above I am unable to find any ground upon which the applicant could successfully challenge this Tribunal’s decision on the basis that in coming to it it fell into jurisdictional error.  There being no jurisdictional error the provisions of s.477(2) must apply.  The application is not competent having been made at a time after the expiry of 28 days from the original decision of the Tribunal.

   I dismiss the application. I order that the applicant pay the respondent’s costs which I assess in the sum of $4,750.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.’

2. It is apparent that the learned Federal Magistrate dismissed the application on the basis that it was not competent, having been made at a time after the expiry of 28 days from the original decision of the Tribunal.  On 23 July the applicant filed what was called a notice of appeal from the whole of the judgment of the Federal Magistrate which alleged various failures on his Honour’s part.

3. When the matter first came before me I drew attention to the fact that the better view was that the decision under review was technically interlocutory and that leave to appeal to this Court was required.  Since that time there has been no amendment to the proceeding seeking such leave.  Some written submissions have, however, been filed and served which bear all the hallmarks of having been drafted either by a lawyer or by a person who has some working knowledge of refugee law.  That submission shows an appreciation of the question of time being involved.  The problem, of course, as with many of these cases, is that the lawyer or other person who drafted the submission is not here and the applicant professes not to speak English and has been quite unable to speak to his submissions.  His plea has been that he should be given further time to retain legal representation which he says he is now in a position to do.  That repeats something which is in the written submission.

4. As has been submitted by the solicitor for the respondent, to obtain a grant of leave it is necessary to demonstrate that there is a properly arguable case that the learned Federal Magistrate was in error in the manner in which he dealt with the application before him.  It is at that hurdle, in my opinion, that this applicant falters.  The judgment below was given in a setting where the applicant was unrepresented and the form of his application was sparse to say the least.  It appears that the learned Federal Magistrate allowed the applicant to widen his argument, again apparently by reference to a document that was made available.  The Magistrate went through the points that were raised, one by one, and dealt with them.

5. The notice of appeal to this Court raises several points.  Paragraph 2 of the applicant’s submissions raises some further points.  I propose to restrict my consideration of this matter to a consideration of the judgment of the Magistrate in the light of the points which are sought to be made.

6. The first issue relates to the complaint concerning the way in which the Court dealt with the issue of the association of the applicant with what was called the People’s War Group (PWG).  I see no error in the way the learned Magistrate dealt with the whole issue of the PWG.  The Tribunal, it needs to be borne in mind, had found in that respect that the applicant's evidence was an elaborate fabrication.  It did not accept that he was involved in the PWG.  As the learned Magistrate said, that is a matter for the Tribunal and not for the Court.

7. The question of bias was dealt with by the learned Magistrate in accordance with the authorities and I see no error in the way he dealt with that.  The issue of the wound certificate was an issue that raised a piece of evidence which was for the Tribunal to consider, as were, with one exception, all of the other matters that are sought to be raised by the applicant here either in the formal notice of appeal or in the written submission.

8. The one exception is the argument that the Tribunal had not dealt with the claim to persecution on the basis that the applicant was from an untouchable caste.  Again, I can see no difficulty with the rejection of this ground.  The reasons of the Tribunal, reproduced at page 107 of the Green Book, expressly referred to his membership of an untouchable caste and dealt with that, rejecting the notion that that involved persecution within the meaning of the Convention in the circumstances of this case.

9. In all of the circumstances, in my opinion, if leave were granted the appeal would be doomed to failure and there is no occasion further to prolong a process which, so far as this protection visa is concerned, commenced in the middle of 1999.  I should also say that the plea for further time to obtain legal representation is, in the context of this proceeding, hopeless.  As has been pointed out by the solicitor for the respondent, two and a half years have passed since the Tribunal decision during which this applicant could have obtained legal advice and he has not done so.  There is no evidence before me to suggest that he could or would do so now.  Even if he could, in my opinion, the proceeding is hopeless.  I therefore dismiss the proceeding before me which in form is an appeal but which in reality is an application for leave to appeal.  I order that the applicant pay the costs of the respondent.

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

Associate:

Dated:             2 September 2004

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	M Allatt of Australian Government Solicitor
Date of Hearing:	24 August 2004
Date of Judgment:	24 August 2004