SZCOT v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1771

FEDERAL COURT OF AUSTRALIA

SZCOT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1771

SZCOT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD1357 OF 2004

EMMETT J
11 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1357 OF 2004

BETWEEN:	SZCOT APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	11 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal filed on 17 September 2004 be dismissed.  

2.The applicant pay the respondent’s costs fixed in 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	NSD1357 OF 2004

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

JUDGE:	EMMETT J
DATE:	11 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application for leave to appeal from orders made by Federal Magistrate Driver on 13 September 2004.  By those orders, his Honour upheld an objection to competency and dismissed the proceeding before the Court summarily as incompetent.

2. The applicant claims to have been born in Burma and was subsequently resident in Bangladesh.  He arrived in Australia on 3 February 2001, and on 16 March 2001, he lodged an application for a Protection Class XA Visa under the Migration Act 1958 (Cth) (‘the Act’). On 15 May 2001, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 13 June 2001, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of that decision. On 20 January 2003, the Tribunal affirmed a decision not to grant a protection visa. The Tribunal handed down its decision on 12 February 2003.

3. The Tribunal accepted that the applicant was born in Burma but was essentially stateless. The Tribunal stated that the applicant is in a most unenviable situation and faces an uncertain future. The Tribunal observed that it would appear that Australia may well have difficulties having either Burma or Bangladesh accept him. The Tribunal stated that those concerns obviously raise humanitarian issues in terms of the applicants being able to lead a life of security and reasonable welfare. However, as the Tribunal said, its role is limited to determining whether the applicant satisfied the criteria for the grant of a protection visa. The Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Accordingly, the applicant did not satisfy the criterion set out in s 36(2) of the Act for the grant of a protection visa. Consideration of the applicant’s circumstances on humanitarian grounds is a matter solely within the Minister’s discretion.

4. The Tribunal’s decision was published on 12 February 2003, and on 11 March 2003, the applicant commenced proceedings in this court for judicial review of the Tribunal’s decision.  On 16 June 2003, Wilcox J, dismissed the application with costs.  There was no appeal from that decision.

5. Instead, the applicant commenced fresh proceedings in the Federal Magistrate Court on 28 January 2004.  On 19 May 2004, the Minister filed a notice of objection to the competency of the proceeding on the basis that it was a privative clause decision that was made by the Tribunal and the application to the Federal Magistrates Court was out of time.  On 28 May 2004, the Minister filed a notice of motion seeking summary dismissal of the proceeding on the basis that it was an abuse of process.

6. Federal Magistrate Driver, in his reasons for his orders of 13 September 2004, concluded that the decision of the Tribunal is a privative clause decision and that, accordingly, the application was commenced well outside the 28 day time limit imposed by s 477(1)(a) of the Act. His Honour, therefore, upheld the objection to competency.

7. His Honour also observed that if he were wrong in that conclusion he would nevertheless have dismissed the application as an abuse of process having regard to the earlier proceeding before Wilcox J:  see NALB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 614. Federal Magistrate Driver referred to a passage in the reasons of Wilcox J [par 8] where his Honour stated:

   ‘The applicant had not submitted the Tribunal fell into error of law in its approach to his case.  Neither does he suggest [that] the Tribunal failed to follow required procedures.  I see saw no error of law or failure to comply with proper procedure.’

8. Federal Magistrate Driver considered that a reading of Wilcox J’s reasons and conclusions indicates that Wilcox J had had regard to all of the material and was mindful of the fact that the applicant was unrepresented.  There is no reason to suggest that any grounds might have been raised before the Federal Magistrates Court could not have been raised before Wilcox J.

9. The grounds in the draft notice of appeal filed in connection with the application are simply that the Federal Magistrate failed to identify a breach of s 418(3) of the Act, and denial of natural justice. The applicant was unable to advance any submissions in support of such grounds.

10. It is clear that the orders of Federal Magistrate Driver were interlocutory orders and, accordingly, leave is required.  I am not persuaded that there is any error at all on the part of Federal Magistrate Driver.  It follows, in my view, that the application for leave to appeal should be dismissed with costs.  The Minister has asked for an order for costs in a fixed sum in order to avoid further incurring of costs and delay.  That seems to me to be an appropriate course. 

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

Associate:

Dated:             25 January 2005

The Applicant appeared in person.
Solicitor for the Respondent:	B Rayment, Sparke Helmore
Date of Hearing:	11 November 2004
Date of Judgment:	11 November 2004