SZASO v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1755

FEDERAL COURT OF AUSTRALIA

SZASO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1755

SZASO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1382 OF 2004

EMMETT J
20 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1382 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZASO APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	20 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

(1)The appeal be dismissed.  

(2)       The appellant to pay the respondent’s costs in the sum of $1200.

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	N1382 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZASO APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	20 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a citizen of South Korea who arrived in Australia on 21 April 2002.  On 4 June 2002 he applied for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 20 June 2002 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) refused to grant a protection visa. On 23 July 2002 the appellant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of the delegate’s decision and on 17 April 2003 the Tribunal affirmed the decision not to grant a protection visa. The reasons for that decision were published on 7 May 2003.

2. On 5 June 2003 the appellant applied to the Federal Magistrates Court for constitutional writ relief under s 39B of the Judiciary Act 1903 (Cth). On 24 September 2004 Federal Magistrate Lloyd-Jones ordered that the application be dismissed. On the same day the appellant filed a notice of appeal to this Court from the orders of the Federal Magistrates Court. The grounds specified in the notice of appeal are as follows:

   ‘I was not given a proper opportunity to explain my application.  The Judge did not take into account all the evidence provided at my hearing and gave a decision straight away. 

   The officer did not consider my application proper[l]y, he made jurisdiction mistakes.’

3. The appellant filed with his notice of appeal an affidavit in which he said as follows:

   ‘I appeared at the court on 18/08/2004.  I discussed the particulars of each ground of review being relied upon by… me and it was refused by [the] Federal Magistrates Court on that day. 

   I have pointed out the jurisdiction error with RRT.  However the application was still refused and I believe that it was another jurisdiction error.  I therefore applied for leave and for an extension of time [in which] to file and serve a notice of appeal [from the judgment] of Lloyd-Jones FM given on 24/09/2004.’

4. The appellant does not understand English and appeared in person with the assistance of an interpreter of the Korean language.  The affidavit indicates the considerable misapprehension on the part of the appellant.  While a hearing took place before the Federal Magistrates Court on 18 August 2004, the decision and the reasons for it were not published until 24 September 2004.  There was no need to apply for an extension of time within which to lodge a notice of appeal.

5. When asked to address the Court in support of his appeal the appellant said first that the decision of the Department was based on a prejudice that people from South Korea are not entitled to protection visas.  He then said that he had asked for more time from the Federal Magistrates Court but time was refused.  That was not a ground of appeal.  In any event, to appeal from an order refusing an adjournment would require leave.

6. I have considered the reasons of the Tribunal.  They record that on 5 March 2003 the Tribunal wrote to the appellant advising that it had considered all material before it relating to his application but was unable to make a favourable decision on that information alone.  The Tribunal invited the appellant to give oral evidence and present arguments at a hearing on 17 April 2003.  However, on 13 March 2003 the Tribunal received a response apparently signed by the organisation authorised to receive notice on behalf of the appellant.  That response indicated that the appellant did not want to go to a hearing of the Tribunal. 

7. The Tribunal said in its reasons that it was satisfied that the appellant is a citizen of South Korea, however, the Tribunal observed that the appellant had not put forward any details of any harm, let alone harm amounting to persecution, that he had suffered in the past.  The Tribunal noted that the most that the appellant could do was to suggest that he was being pushed out of the company in which he worked for 20 years because he was aware of corrupt activities within it.  The appellant did not claim that he had been dismissed or, indeed, that he had been threatened by those who wished him to keep silent on the matter of corruption.  Further, there was no evidence before the Tribunal that would lead it to conclude that the appellant could not seek protection from Korea if he ever were put into the position of a Court witness in relation to such corruption. 

8. The Tribunal was not satisfied that the appellant had suffered harm or that there was any risk that harm would befall him in the reasonably foreseeable future if he returned to Korea.  In his application to the Federal Magistrates Court, the appellant relied on the following grounds:

   ‘1.The decision by RRT was induced by actual bias of the officer.

   2.There was no evidence or other materials to justify the making of the decision.’

9. No particulars were provided of either ground and no evidence was provided in relation to the allegation of bias.  The Federal Magistrate gave careful consideration to the law concerning bias.  I perceive no error at all in the reasons of the Federal Magistrates Court.  The appeal should be dismissed.

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

Associate:

Dated:             19 January 2005

The appellant appeared in person.
Solicitor for the Respondent:	B. Rayment, Sparke Helmore
Date of Hearing:	20 October 2004
Date of Judgment:	20 October 2004