SZCEX v Minister for Immigration and Multicultural Affairs

FEDERAL COURT OF AUSTRALIA
SZCEX v Minister for Immigration & Multicultural Affairs
[2006] FCA 1010
SZCEX AND ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND ANOR
NSD 955 OF 2006
RARES J
11 JULY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 955 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCEX
FIRST APPLICANT

SZCEY
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

RARES J

DATE OF ORDER:

11 JULY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1. The application for leave to appeal be dismissed with costs.
2. Costs be fixed in the sum of $1,200.
3.The applicant not file any further proceeding in this court seeking to challenge the decision of the Refugee Review Tribunal made on 27 November 2003 and handed down on 20 November 2003 or the decision of the delegate of the first respondent dated 25 February 2003 refusing to grant a protection visa without the leave of a Judge of this court.

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 955 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCEX
FIRST APPLICANT

SZCEY
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

RARES J

DATE:

11 JULY 2006

PLACE:

SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

This matter was called outside the Court today. There was no appearance. The Court received at 10.19 am a letter from the first applicant dated today, saying that he had received the notice for hearing for today and asserting that he had not enough time to submit the papers because papers take some time to come from India and that was why he could not be ready by today. He asked for time to submit papers, said that he had no work rights and that is why he could not come to Sydney for his hearing and asked for the hearing to be on the phone. The second applicant has not appeared. Because they are husband and wife (see the reasons of the Refugee Review Tribunal at the first paragraph), I am satisfied that they are both aware of the hearing from the Court's letter to them fixing the hearing, dated 29 June 2006.
Pursuant to my powers under s 25(2)B(bb)(ii) of the Federal Court of Australia Act 1976 (Cth), the applicants have failed to attend the hearing, and I order that the application be dismissed for want of appearance. I order that the applicants pay the respondent's costs fixed in the sum of $1,200. Under the inherent power of the Court, I order that the applicants not file any further proceeding in this court seeking to challenge the decision of the Refugee Review Tribunal made on 27 November 2003 and handed down on 20 November 2003 or the decision of the delegate of the first respondent dated 25 February 2003 refusing to grant a protection visa without the leave of a Judge of this court.

I certify that the preceding two (2) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.
Associate:
Dated: 4 August 2006

The Applicant: No appearance

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 11 July 2006

Date of Judgment: 11 July 2006

The matter before the Federal Court was an application by the applicant, SZCEX, for leave to appeal against the decision of the Refugee Review Tribunal, which upheld a delegate’s decision to refuse a protection visa. The applicant contested the Tribunal's decision on various grounds, including the alleged error in the assessment of evidence and the application of the relevant legal standards. The Minister for Immigration and Multicultural Affairs opposed the application for leave to appeal, arguing that the Tribunal's decision was correct and that the applicant had not demonstrated any error warranting an appeal.

The central legal issues the court had to decide were whether the Tribunal had erred in its assessment of the applicant's evidence and whether the Tribunal's decision was open on the material before it. The court also needed to consider whether there were any jurisdictional errors or significant procedural irregularities that warranted an appeal. Additionally, the court had to assess if the applicant had demonstrated that the Tribunal's decision involved a substantial miscarriage of justice, which is a prerequisite for granting leave to appeal.

The court found that the Tribunal's decision was based on a proper assessment of the evidence and that there were no jurisdictional errors or significant procedural irregularities. The court was satisfied that the Tribunal had correctly applied the relevant legal standards and that the decision was open on the material before it. The court also concluded that the applicant had not demonstrated a substantial miscarriage of justice, and therefore, the application for leave to appeal should be dismissed. The court ordered that the application be dismissed with costs and that the applicant not file any further proceedings in the court without the leave of a Judge. The costs were fixed in the sum of $1,200.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 955 OF 2006
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCEX FIRST APPLICANT SZCEY SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	RARES J
DATE OF ORDER:	11 JULY 2006
WHERE MADE:	SYDNEY

JUDGE:	RARES J
DATE:	11 JULY 2006
PLACE:	SYDNEY

The Applicant:	No appearance
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	11 July 2006
Date of Judgment:	11 July 2006