SZCAZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1482

FEDERAL COURT OF AUSTRALIA

SZCAZ v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1482

MIGRATION – Refugee Review Tribunal – application for leave to appeal – no issue of principle

SZCAZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1364 OF 2005

CONTI J
31 AUGUST 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1364 OF 2005

BETWEEN:	SZCAZ APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	31 AUGUST 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for leave to appeal be dismissed.

2.        The applicant to pay the respondent’s costs, assessed at $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 1364 OF 2005

BETWEEN:	SZCAZ APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	31 AUGUST 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. By written application filed on 10 August 2005 the applicant seeks leave to appeal from the judgment of Lloyd-Jones FM delivered on 22 July 2005, which refused to set aside an earlier order of the Federal Magistrates Court dismissing the applicant’s application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 5 November 2003.  The Tribunal had affirmed the decision of a Ministerial delegate dated 7 February 2003 to refuse the applicant a protection visa. 

2. According to the Tribunal’s reasons for decision, the applicant, and also his wife, claimed to be citizens of India.  They arrived in Australia on 2 January 2003.  The applicant applied for a protection visa on 10 January 2003 on the ground that he had a well-founded fear of persecution from Hindus upon his return to India for reason of his being a Muslim. 

3. On 1 December 2003, the applicant made an application for review of the Tribunal’s decision by the Federal Magistrates Court. The applicant subsequently attended a directions hearing before a Registrar of that Court on 29 April 2004. Orders were made on that occasion requiring the applicant to file and serve an amended application, which he duly did on 13 July 2005. The Minister filed a notice of motion on 9 March 2005 seeking to have the application for review dismissed summarily on the ground that no reasonable cause of action was disclosed in the pleadings. That motion was heard on 12 April 2005. The applicant did not attend that hearing. Pursuant to r 13.03A(c) of the Federal Magistrates Court Rules, the application for review was summarily dismissed for the applicant’s failure to appear at the hearing of the Minister’s motion. 

4. On 3 May 2005 the applicant applied to the Federal Magistrates Court under r 16.05 of the Federal Magistrates Court Rules to have set aside the order dated 12 April 2005 dismissing his application for review.  That application was dismissed by Lloyd-Jones FM on 22 July 2005.  A judgment to that effect is interlocutory in nature, because it does not finally determine the legal rights of the parties:  Re Luck (2003) 203 ALR 1. Accordingly leave to appeal is required: Federal Court Act 1976 (Cth) s 24(1A).

5. In support of his application for leave to appeal the applicant has filed an affidavit which purports to state grounds for the application.  Those grounds are as follows (read literally):

   ‘1. The decision involve an error of law whether or not that error appears on the record of the decision.

   2. Further in finding it would be reasonable for applicant to have to relocate to another part of India, the Tribunal by implication accept that the Applicant may suffer harm if he was to return to his State.

   3. Procedure that were required by law to be observed in connection with making of the decision were not observed.’

6. Unfortunately I am not able to obtain any further particularisation of those grounds from the applicant owing to his failure to attend today’s hearing.  In evidence is a copy of a letter dated 17 August 2005 sent by the Court to the applicant’s address for service instructing him to attend today’s hearing. 

7. The first ground does not particularise the error alleged to have been committed by his Honour and without more does not disclose an acceptable basis for granting the relief sought.  I observe that except in the case of the first, each of the above ‘grounds’ were argued by the applicant before the Federal Magistrate.  His Honour extracted the segment of the Tribunal’s reasons for decision in which its relocation finding was made and concluded from it that the Tribunal had specifically addressed the applicant’s individual circumstances.  His Honour was not in error in so finding.  In relation to the applicant’s contention that the Tribunal had not observed the correct legal procedure, the Federal Magistrate observed that the ground was asserted by the applicant without particularisation.  Equally applicable is that observation to the current proceeding brought by the applicant.  In dismissing that ground his Honour found that ‘the decision of the Tribunal disclosed that the Tribunal discussed all relevant concerns with the applicant and accordingly there was nothing to base an argument that the Tribunal failed to observe the statutory procedures imposed under the [Migration Act 1958 (Cth)].’ I have reviewed the Tribunal’s reasons for decision and reached the same conclusion.

8. Accordingly, the applicant has failed to demonstrate any error in his Honour’s reasons for judgment and his failure to appear at today’s hearing, in spite of forward notice of the same, tends to suggest that his prosecution of this application was motivated by a desire to postpone his inevitable repatriation to his country of origin rather than out of genuine concern for the legality of the Federal Magistrate’s decision. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             19 October 2005

The applicant did not appear
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 August 2005
Date of Judgment:	31 August 2005