SZCXX v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1347

FEDERAL COURT OF AUSTRALIA

SZCXX v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1347

SZCXX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1390 of 2004

WILCOX ACJ
12 OCTOBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1390 of 2004

BETWEEN:	SZCXX APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX ACJ
DATE OF ORDER:	12 OCTOBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

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 1390 of 2004

BETWEEN:	SZCXX APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX ACJ
DATE:	12 OCTOBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision of Baumann FM dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’).  The matter was allocated to my docket and came before me for directions at 9.30am today.  I had previously been made aware that the appellant was being held in detention at Villawood Detention Centre.  At the directions hearing, the appellant told me he had been held in detention for about a year, together with his wife and four children.

2. The appellant also said at the directions hearing that he wished to obtain legal advice and had made inquiries about this.  However, it emerged that he had taken this action only in the last few days, despite the fact that the Tribunal’s decision was handed down on 19 February 2004.  In the course of considering the appellant’s request for an adjournment in order to obtain legal advice, I noted that the Tribunal's reasons for decision indicated that he was represented at the Tribunal hearing by a lawyer. 

3. I was informed by Ms B Rayment, the solicitor for the Minister for Immigration and Multicultural and Indigenous Affairs, that the appellant had also received advice from a lawyer on the panel maintained by the Court in conjunction with the New South Wales Bar Association and the Law Society of New South Wales.  Apparently the lawyer had assisted the appellant by reframing his grounds of appeal to the Federal Magistrates Court.  The appellant told me he had not been happy with the reframed grounds.  I note that the arguments put by him to the magistrate, when he represented himself, contained no arguments of jurisdictional error; it appears the appellant raised five issues, each one of which was an issue concerning the Tribunal's factual conclusions.

4. I explained to the appellant that the Court could intervene in the case only if he was able to demonstrate jurisdictional error by the Tribunal.  I explained the concept of jurisdictional error to the appellant.  He told me he understood what I had said. 

5. I informed the appellant that I was not prepared to postpone the hearing of the appeal to some indefinite future date whilst he pursued his vague proposal to obtain legal assistance.  The appellant had already had ample opportunity to obtain legal advice and, indeed, had received legal advice.  I was particularly concerned that the Court should not take a course which would prolong the period of detention of the appellant and his family, particularly his children.  Accordingly, I told the appellant that I thought the matter should come on for hearing as soon as possible. 

6. As there was nothing to be gained by doing otherwise, I determined that the matter should be heard later today, after the appellant had had an opportunity to collect his thoughts. In my capacity as Acting Chief Justice, I made a direction, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the jurisdiction of the Court in this matter be exercised by a single judge and I fixed the matter for hearing at 2.00pm today.

7. When the matter was called for hearing, I invited the appellant to put any argument he wished in support of a claim that the Tribunal's decision was affected by jurisdictional error.  As had been the position before the magistrate, the appellant put a number of arguments in relation to the Tribunal's findings of fact, but he put no argument of jurisdictional error.  Like the magistrate, I have myself considered the Tribunal's reasons for decision in search of any possible jurisdictional error.  I am unable to detect any such error. 

8. In the circumstances, the appropriate order is that the appeal be dismissed with costs.  I so order.

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

Associate:

Dated:             29 October 2004

The Appellant appeared in person with the assistance of an interpreter.
Solicitor for the Respondent:	Ms B Rayment, Sparke Helmore
Date of Hearing:	12 October 2004
Date of Judgment:	12 October 2004