SZCVU v Minister for Immigration and Multicultural Affairs

[2006] FCA 1365

FEDERAL COURT OF AUSTRALIA

SZCVU v Minister for Immigration and Multicultural Affairs [2006] FCA 1365

SZCVU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1213 OF 2006

MOORE J
20 OCTOBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1213 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCVU
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE OF ORDER:	20 OCTOBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant 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	NSD 1213 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZCVU
Appellant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE:	20 OCTOBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal against a judgment of a Federal Magistrate of 2 June 2006 dismissing an application for judicial review of a decision of the Refugee Review Tribunal, which affirmed a decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant the appellant a protection visa.  The appellant arrived in Australia on 27 September 1996.  His application for a protection visa was refused by a delegate of the Minister on 9 July 1997.  This decision was affirmed by the Tribunal on 21 September 1998.

2. Approximately three years after the Tribunal affirmed the delegate’s decision, the appellant sought prerogative relief from the High Court in the form of an order nisi.  He did this by joining the class action in S89 of 1999 (in the matter of Nancy Lie v Refugee Review Tribunal & Ors) on 31 August 2001.  On 8 August 2002 the High Court handed down its judgment in that matter: Muin v Refugee Review Tribunal (2002) 190 ALR 601; [2002] HCA 30 (also dealing with the matter of Muin v the Refugee Review Tribunal & Ors, S36 of 1999).  On 25 November 2002 the High Court granted leave to any person named in the Schedule to the statement of claim in that matter to file an application in the High Court seeking an order nisi in relation to the decision of the Tribunal concerning that person.

3. On 28 May 2003 the appellant filed a draft order nisi in the High Court along with a supporting affidavit.  The proceedings were remitted to the Federal Court where Emmett J directed the appellant to file and serve a statement of contentions and setting out reasons why an extension of time should be granted.  Nothing filed by the appellant addressed the question of an extension of time.  His Honour found there was no reason why the time limits in the rules should not be applied in this case where the delay was in excess of three years.  Dismissing the application, his Honour found that, in any event, the appellant had not disclosed any error of law by the Tribunal’s approach or in its decision and that the Tribunal’s decision was a privative clause decision.  His Honour noted that the appellant declined the opportunity to attend the Tribunal hearing and failed to submit further material in support of his claims after having been informed that the Tribunal was unable to make a favourable decision on the information available: S234 of 2003 v Refugee Review Tribunal [2004] FCA 493.

4. The application before the Federal Magistrate was brought under s 39B of the Judiciary Act 1903 (Cth) invoking s 483A of the Migration Act 1958 (Cth). The respondent lodged a notice of objection to competency on the grounds that the decision was a privative clause decision and that the application had been lodged out of time. The grounds of the application filed by the appellant referred to independent evidence regarding false and fraudulent documents in Bangladesh and the Tribunal’s failure to give him an opportunity to comment on independent country information. There was no reference in the Tribunal decision or the Court book to any independent evidence and the Tribunal did not rely on any country information. The Federal Magistrate considered the remaining grounds raised in the amended application and submissions but found they were misconceived and did not provide support for the relief claimed. He noted that the amended application and written submissions appeared to have been prepared by someone else and were not directed to those proceedings. Considering the issue of delay, his Honour found that the appellant had failed to show why he should be permitted to proceed upon an application six years after the Tribunal decision, with a period of three years of unexplained delay, when no earlier action to seek judicial review of the Tribunal’s decision was pursued. His Honour dismissed the application with costs.

5. Before this Court, the appellant sought again to rely on the misconceived ground relating to evidence which was not relied on by the Tribunal.  He also sought, impermissibly, to impugn the merits of the decision.  The only other ground relied on was that the Federal Magistrate erred in dismissing his application as incompetent as it was out of time.  The Federal Magistrate made no such finding.  The ground is misconceived.  The matter should be dismissed with costs.

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

Associate:

Dated:        20 October 2006

The Appellant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 October 2006
Date of Judgment:	20 October 2006