SZCLV v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1795

FEDERAL COURT OF AUSTRALIA

SZCLV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1795

SZCLV & ORS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ANOR

NSD 1409 OF 2004

EMMETT J
22 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1409 OF 2004

BETWEEN:

SZCLV
FIRST APPELLANT

SZCLW
SECOND APPELLANT

SZCLX
THIRD APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

22 OCTOBER 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The notice of appeal filed on 29 September 2004 be struck out as an abuse of process.

2.The appellants 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	NSD1409 OF 2004

BETWEEN:

SZCLV
FIRST APPELLANT

SZCLW
SECOND APPELLANT

SZCLX
THIRD APPELLANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	EMMETT J
DATE:	22 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. When this appeal was called on for directions today, there was no appearance for the appellants.  The notice of appeal was filed by a firm of solicitors and it is a considerable discourtesy on their part not to appear.  The notice of appeal discloses no grounds at all.  It simply says:

   ‘The grounds will be provided once an opinion from counsel has been obtained.’

2. I have considered the judgment that is the subject of this appeal. It is a decision of the Federal Magistrates Court dismissing an application for prerogative writ relief in respect of a decision of the Refugee Review Tribunal (‘the Tribunal’) given on 25 November 2003.

3. The basis of the Tribunal’s conclusion is that the Tribunal did not accept the evidence of the appellants.  Indeed, the Tribunal expressed the view that the appellants had completely fabricated the danger they claimed to fear.  The only ground specified before the Federal Magistrates Court was that:

   ‘The Tribunal committed jurisdictional error of law by failing to have regard to information that it was obliged to consider pursuant to s.423 of the Migration Act.’

4. The Federal Magistrate dealt with that allegation in considerable detail and demonstrated that it was completely without substance.   The material on the Tribunal’s file indicated quite clearly that consideration has been given to all of the material submitted by the appellants. 

5. It is quite clear that this appeal is completely without substance and that the notice of appeal should never have been filed.  It does no credit to the solicitors that they were a party to filing a notice of appeal in those circumstances.  I consider the notice of appeal in its present form to be an abuse of process and I propose to strike it out on that basis. 

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            21 March 2005

No appearance for the Appellants
Counsel for the Respondent:	P Reynolds
Date of Hearing:	22 October 2004
Date of Judgment:	22 October 2004