SZCQO v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1707

FEDERAL COURT OF AUSTRALIA

SZCQO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1707

SZCQO v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD1640 OF 2004

GYLES J
15 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1640 OF 2004

BETWEEN:	SZCQO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	15 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1    The application for leave to appeal be dismissed.

2    The applicant pay the costs of the respondent.

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	NSD1640 OF 2004

BETWEEN:	SZCQO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	15 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time and for leave to file and serve a notice of appeal from a decision of Moore J dated 14 September 2004 (SZCQO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1188) dismissing as incompetent an application for review of a Refugee Review Tribunal decision of 20 August 1998 which affirmed a decision of the Minister's delegate to refuse a protection visa.

2. It appears that the applicant had applied to this Court for review of that decision as early as September 1998 but that those proceedings were struck out in March 1999.  The applicant then applied de novo to the Federal Magistrates Court for review of the Refugee Review Tribunal decision in February 2004.  That proceeding was, by consent, transferred to this Court and came on for hearing before Moore J.

3. There are two issues to be addressed:  one is delay and the second is whether there is any chance of success of an appeal.  There is some evidence of the applicant having some psychological difficulties and I would not ground my decision in this matter upon mere delay.  The real issue is whether or not the grant of leave would be futile because there is no substantive chance of success if the appeal goes ahead.

4. In my view the applicant has not shown the existence of such a chance.  The documents that he has filed are very general in form and do not descend to isolating any error on the part of Moore J that would be appellable.  I pointed this out to the applicant who, being unrepresented, was unable to cure the problem.

5. I have read the judgment from which the applicant seeks to appeal and I have also read the written submissions on behalf of the Minister.  I raised with the solicitor for the Minister whether or not what Moore J described as the threshold question of what law should apply to the disposition of the matter would give rise to a proper issue on appeal (see the judgment below at [9]–[10]).

6. It was submitted that the manner in which Moore J disposed of the matter at [11]–[13] of the decision is such that there would be no proper ground of challenge to the decision of the Tribunal no matter what legal regime governed the matter.  Moore J pointed out that the Tribunal had concluded that the applicant would have effective state protection and, in any event, could avoid any threat of harm by relocating and, having considered the matter, held that the Tribunal's consideration of those issues was unexceptionable.

7. The applicant has sought to tender before me what might be called country information which would cast doubt upon the Tribunal’s approach to those matters.  That material was not before Moore J and, of course, it has a considerable air of unreality in relation to a decision of a Tribunal made as long ago as 1998.  I ruled that material to be irrelevant.  Whilst, no doubt, minds might differ upon the proper answer to the question that was before the Tribunal, there is no basis shown for doubting the conclusion reached by Moore J in respect of the Tribunal’s findings.  I cannot see any proper basis upon which a court on appeal could take a different view.

8. Therefore, under all of the circumstances, I am bound to refuse this application and order that the applicant pay the costs of the respondent.

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

Associate:

Dated:             21 December 2004

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	P Reynolds of Clayton Utz
Date of Hearing:	15 December 2004
Date of Judgment:	15 December 2004