SZCZW v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 515

FEDERAL COURT OF AUSTRALIA

SZCZW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 515

SZCZW v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 474 of 2005

WILCOX J
27 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 474 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCZW APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	27 APRIL 2005
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 474 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	WILCOX J
DATE:	27 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision of Federal Magistrate Smith.  The magistrate dismissed an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’). 

2. When the matter came before me for directions last week I happened to be Acting Chief Justice. In that capacity I made a direction, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal be heard and determined by a single judge. 

3. The appellant advised the Tribunal in writing that he did not wish to give oral evidence and that he consented to the Tribunal making its decision without taking any further action to allow or enable him to appear before it.  The Tribunal acted on that intimation and made a decision on 30 January 2004.  The decision was communicated to the appellant by letter dated 24 February 2004.  The Tribunal was unable to be satisfied, on the documentary material before it, of the truth of claims made by the appellant in relation to his alleged political activities in his native Pakistan and the consequences of those political activities.

4. The appellant appeared in person before the learned magistrate.  The magistrate considered a number of matters put to him by the appellant; he found none had substance.  The grounds seem to have been drafted without recognition of the fact that the Federal Magistrates Court has no jurisdiction to review the facts of a case. 

5. When the matter came before me today, the appellant asked for more time, so he could engage a lawyer to advise him and possibly represent him on the appeal.  I said I was not prepared to adjourn the hearing of the appeal.  The appellant has had 14 months in which to consider whether he has grounds for challenging the Tribunal's decision.  He has apparently taken no action to obtain legal assistance until, possibly, the last few days when he may have made an inquiry.  I do not think it is acceptable that a person, who wishes to come to court to raise a legal argument about a Tribunal decision, should wait until the last moment before taking action to obtain a lawyer.  At the very least, one would have expected the appellant to obtain some legal advice before the hearing in the Federal Magistrates Court.

6. When I asked the appellant whether there was any matter he wished to raise in relation to the Tribunal's decision, he said there was nothing more he could say.  He has, in fact, not put any argument in relation to the decision. 

7. The matters raised before the magistrate were dealt with in a manner with which I agree. I have read the Tribunal's decision.  I see no basis upon which it may be argued that it exhibits even arguable jurisdictional error. 

8. The order of this Court is that the appeal will be dismissed with costs.

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

Associate:

Dated:             3 May 2005

The Appellant appeared in person
Solicitor for the Respondent:	Mr R White of Sparke Helmore
Date of Hearing:	27 April 2005
Date of Judgment:	27 April 2005