SZBBV v Minister for Immigration & Multicultural & Indigenous

[2005] FCA 183

FEDERAL COURT OF AUSTRALIA

SZBBV v Minister for Immigration & Multicultural & Indigenous
Affairs [2005] FCA 183

SZBBV, SZBBW, SZBBX & SZBBY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1924 of 2004

LINDGREN J
2 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1924 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZBBV
FIRST APPELLANT

SZBBW
SECOND APPELLANT

SZBBX
THIRD APPELLANT

SZBBY
FOURTH APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

LINDGREN J

DATE OF ORDER:

2 MARCH 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The first and second appellants pay the respondent’s costs.

3.That for the purposes of Order 2, instead of taxed costs, the respondent be entitled to the sum of $600.

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 1924 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:

SZBBV
FIRST APPELLANT

SZBBW
SECOND APPELLANT

SZBBX
THIRD APPELLANT

SZBBY
FOURTH APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	LINDGREN J
DATE:	2 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By a notice of appeal filed on 21 December 2004 the appellants, an Indian man and woman and their two children, appeal from a judgment of the Federal Magistrates Court of Australia (‘FMCA’) given on 2 December 2004, dismissing their application to the FMCA for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 16 June 2003 and handed down on 11 July 2003.

2. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth) (‘the FCA Act’) the Chief Justice determined it to be appropriate that the appellate jurisdiction of the Court in relation to the appeal be exercised by a single Judge.

3. The notice of appeal stated the following grounds of appeal:

   ‘(a)The Federal Magistrate committed error in completely accepting the findings of the Refugee Review Tribunal.

   (b)The Federal Magistrate failed to appreciate the real tense situation between the Hindus and Muslims in India, especially in Bombay.

   (c)The Federal Magistrates Court did not consider the grounds submitted by the applicant in the amended application to their satisfaction.

   (d)The Federal Magistrate committed legal and factual error in accepting the Refugee Review Tribunal’s finding that the applicants can live peacefully in India by relocating.

   (e)Both the Federal Magistrate and the Refugee Review Tribunal failed to appreciate the real tension prevailing between the minority Muslims and the majority Muslims in India, especially Bombay.

   (f)The Federal Magistrate should have directed the Refugee Review Tribunal to reconsider the matter of the applicant afresh.’

4. When the appeal was first before me for directions on 9 February 2005, I ordered that the appellants file and serve an amended notice of appeal by Tuesday, 1 March 2005 (yesterday), stating, with particulars, proper grounds of appeal, and that the matter be stood over to today at 9.30 a.m. for further directions.  I also noted that it was my intention to dismiss the appeal today if the appellants had not complied with the order.

5. A somewhat lengthy amended notice of appeal was filed yesterday.  It is deficient in that it consists of complaints about the view which the Federal Magistrate took of the facts, or of unparticularised general statements.  The only paragraph of the amended notice of appeal which has caused me some misgiving para (h) which asserts that the Federal Magistrate erred in [9] of his reasons in not accepting:

   ‘ ... the fact that the applicant produced newspaper clippings.’

   However, it is not suggested that there was evidence before the Federal Magistrate that the appellant did supply newspaper clippings to the Tribunal or that otherwise newspaper clippings were before the Tribunal.

6. In [9] of his reasons for decision, the Federal Magistrate noted that the index to the Court Book did not record newspaper clippings as a document received by the Tribunal from the Department.  I think that the reference to the matter of newspaper clippings in the amended notice of appeal does not raise a proper ground of appeal with particulars.

7. In the light of the appellants’ failure to comply with the direction made on 9 February 2005, the Court has power to dismiss the appeal: Federal Court of Australia Act 1976 (Cth) s 25(2B)(bb). Should the Court should exercise that power? I have read the reasons for decision of the Tribunal and of the Federal Magistrate carefully and there is no obvious error of a kind which would allow this Court to interfere. The appeal should be dismissed with an order for costs against the two adult appellants.

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

Associate:

Dated:  7 March 2005

The appellants were not represented and only the first appellant appeared on the hearing.
Solicitor for the Respondent:	Ms K Crawley of Clayton Utz
Date of Hearing:	2 March 2005
Date of Judgment:	2 March 2005