SZBED v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 504

FEDERAL COURT OF AUSTRALIA

SZBED v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 504

SZBED v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 287 of 2005

WILCOX ACJ
21 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 287 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBED APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX ACJ
DATE OF ORDER:	21 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondent’s costs.

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 287 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZBED APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	21 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX ACJ:

1. This is an appeal from a decision of Federal Magistrate Driver dismissing an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, not to grant the appellant a protection visa. The Chief Justice directed, pursuant to s 25(1A) of the Federal Court of Australia Act 1976, that the appeal be heard and determined by a single judge of the Court.

2. The Federal Magistrate noted the appellant had put no argument to him that the Tribunal had committed any jurisdictional error.

3. The magistrate took some trouble to ensure the appellant understood the ambit of the magistrate's jurisdiction.  In his reasons for judgment, the magistrate said:

   ‘I asked the applicant today whether he could point to any mistake having been made by the RRT.  He responded positively that the RRT had not made any mistake.  This obviously confirms that there could be no basis to his application.  I agree with the applicant that no mistake was made by the RRT. Obviously in the circumstances, the decision of the RRT is a privative clause decision and the application must be dismissed.’

4. At the hearing today, the appellant said he wished the case to be returned to the Tribunal so that he would have more time to obtain documents.  I indicated I have no power to return the matter to the Tribunal for this purpose.  The Court can set aside the Tribunal's decision only if satisfied that the Tribunal fell into jurisdictional error. 

5. The only matter advanced today that might conceivably be regarded as related to jurisdictional error was a statement by the appellant that he was nervous at the time of the Tribunal hearing and gave some confused answers.

6. I accept that, in an extreme case where an appellant is so obviously affected by the strain of a hearing that he cannot do justice to himself, a decision by a Tribunal to proceed with a hearing might be regarded as a jurisdictional error.  However, there is nothing to indicate that the present case was of that nature. 

7. It appears from the Tribunal's reasons for decision that the hearing covered many matters of fact and the appellant today confirmed that it occupied several hours.  The appellant told me there was no matter which he had wished to raise before the Tribunal but omitted to raise.  The appellant acknowledged he made no request to the Tribunal for an adjournment of the hearing. He did not express dissatisfaction about the hearing at the time or indeed, so far as I can see, at any later time.  I also note this was not a matter raised by the appellant at the hearing before the magistrate.  There is no factual foundation for any argument of jurisdictional error arising from the conduct of the hearing by the Tribunal.

8. I have read the Tribunal's reasons for decision in order to determine whether they contain any basis of arguable jurisdictional error.  I see no such basis.  The appellant failed before the Tribunal because it was not satisfied of the factual correctness of many of the key points made by him in relation to his claim. 

9. It follows that I reach the same conclusion as was reached by the magistrate.  There is no jurisdictional error in this case. 

10. The order of this Court is that the appeal be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Wilcox.

Associate:

Dated:             3 May 2005

The Appellant appeared in person.
Solicitor for the Respondent:	Ms K Gettens of Blake Dawson Waldron
Date of Hearing:	21 April 2005
Date of Judgment:	21 April 2005