SZCVQ v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1342

FEDERAL COURT OF AUSTRALIA

SZCVQ v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1342

MIGRATION – application for leave to appeal - dismissed

SZCVQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 1234 of 2004

HILL J
13 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1234 OF 2004

BETWEEN:	SZCVQ APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	13 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The applicant’s application for leave to appeal be dismissed.
2. The applicant pay the respondent Minister’s costs of the application.

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	N 1234 OF 2004

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

JUDGE:	HILL J
DATE:	13 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HILL J:

1. Before the court is an application for leave to appeal against a decision of a Federal Magistrate dismissing the applicant’s application to set aside the order of a registrar dismissing the application made by the applicant to that court.  That application was for judicial review of a decision of the Refugee Review Tribunal given on 30 January 2004.

2. The applicant who claimed to be a citizen of India applied for a protection visa immediately after arriving in Australia claiming to be a person to whom Australia had protection obligations under the provisions of the Refugees Convention, that being the 1951 Convention Relating to the Status of Refugees as modified by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).  A delegate of the respondent Minister refused the grant of a protection visa whereupon the applicant applied to the Refugee Review Tribunal for review of that decision.

3. The Tribunal affirmed the delegate's decision not to grant to the applicant a protection visa.  It did so largely because the claims made by the applicant were virtually identical to those lodged by two other applicants in proceedings that have been before the Tribunal.  Other than dates given, the two other applicants apparently had arrived in Australia well before the applicant.  The fact that the claims were almost identical was put by the Tribunal member to the applicant including the fact that there were the same spelling and grammatical errors.  The applicant's response was to swear to God that the claims he had made were true.  He was unable otherwise to give any explanation for the fact that the claims on their face appeared to have been copied from claims made by others save for a change in relevant dates.

4. Not surprisingly, the Tribunal did not believe the applicant's claims. 

5. As already noted the applicant sought judicial review of the Tribunal's decision.  When the matter came before a registrar of the Federal Magistrate's Court for directions the applicant did not attend.  Accordingly, the registrar dismissed the application.  The applicant then sought to have the registrar's decision set aside.  He claimed to have been ill and thus unable to attend the directions hearing before the Registrar, although he produced no medical evidence supporting that. 

6. The Federal Magistrate who heard the application to set aside the Registrar’s decision saw no reason to disbelieve the applicant's claim that he was ill and did not deal with the matter on the basis that the applicant had not been unwell.  Rather the learned Magistrate was of the view that there was no utility in allowing the applicant to agitate his claim on the basis that there was no jurisdictional error apparent on the face of the Tribunal's reasons.  Those reasons proceeded on the simple basis that the Tribunal did not believe the applicant for the reasons which I have noted.

7. Although the applicant said that he would be able to produce evidence indicating that what he had claimed to be the case was true he did not produce any evidence to this effect before the magistrate.  Further a suggestion that procedural fairness had not been given to him because the proceedings before the Tribunal were over quickly was not without more such as to show jurisdictional error.  There was nothing on the material before the learned Magistrate which in any way suggested that the applicant had been denied the right to be heard, or indeed suggested that the proceedings in the Tribunal were unfair, such as to involve jurisdictional error on the part of the Tribunal.

8. When the matter was called before me this morning the applicant did not appear.  I have nevertheless considered the decision of the learned Magistrate in respect of which the applicant sought leave to appeal.  For the applicant to succeed it would be necessary for the applicant to show some error of principle on the part of the learned magistrate.  Far from there being such an error in my view, with respect, the learned magistrate correctly refused to set aside the registrar's decision. Quite clearly on the material before the learned magistrate any attempt at judicial review of the Tribunal's decision was futile as there was no jurisdictional error to which the applicant could even argumentatively point.

9. I would accordingly dismiss the application for leave and order the applicant to pay the Minister's costs of it.  I apologise to the interpreter for wasting her time.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:            28 October 2004

Applicant appeared in person
Counsel for the Respondent:	R White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	13 October 2004
Date of Judgment:	13 October 2004