SZDKP v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 824

FEDERAL COURT OF AUSTRALIA

SZDKP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 824

MIGRATION – appeal from decision of Federal Magistrates Court of Australia – appeal dismissed

SZDKP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 445, upheld

SZDKP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 687 OF 2005

GYLES J
15 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 687 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDKP APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	15 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The appeal be dismissed. 

2.   The appellant pay the costs of the respondent, including reserved 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 687 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	GYLES J
DATE:	15 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of a Federal Magistrate (SZDKP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 445) declining to grant relief which was sought challenging certain decisions of a delegate of the respondent Minister refusing applications for a protection visa, and for resolution of status visas made on 11 December 1996 in the former case and on 13 August and 21 October 2002 respectively in the latter. The matter was heard in the Federal Magistrates Court on 11 and 13 October 2004, and judgment was delivered on 13 April 2005.

2. The appellant was represented before the Federal Magistrates Court by counsel and an experienced counsel in these matters at that.  The respondent was also represented by counsel.  The reserved decision of the learned Federal Magistrate consisted of some 95 paragraphs and goes through in some detail the procedural history of the matter, the attacks made upon the merits of the decisions, considers a number of authorities and also independently considers the question of delay and ultimately declined relief. 

3. The notice of appeal to this Court claims that the appellant was denied procedural fairness, the delegate misinterpreted the applicable law, the delegate failed to consider whether he had a well-founded fear of persecution according to the law, and what was described as many others.  When the matter came on for hearing before me on the 7th of this month, I pointed out to the appellant the difficulty that lay in his path because of the very general nature of the grounds of appeal which did not isolate or identify any error by the learned Federal Magistrate which would lead to a successful appeal to this Court.

4. The appellant indicated that he was somewhat taken by surprise by the matter being in for hearing at the time it was and sought an adjournment.  Over the opposition of the Minister, that adjournment was granted until today.  I endeavoured to explain to the appellant the problems that he would suffer from unless the matter were put into proper form.  Since then all that has happened is that the Court has received two documents which effectively allege that the appellant was not properly represented at the hearing before the learned Federal Magistrate.

5. I have had those documents marked for identification and they can remain with the file.  In my opinion they give rise to no ground of appeal which would enable me to set aside the decision below.  I have again endeavoured to explain to the appellant the difficulty he has, in that this is an appeal from the Federal Magistrate's Court, not from the delegate.  He has frankly said that his real complaint is about the delegate's decision.  He does not like the Magistrate's decision but he frankly said he had read it very carefully and cannot point out to me any particular error in it which would enable him to succeed in the appeal.

6. I regret to say that that is correct.  I have read the learned Federal Magistrate's decision and I have read the submissions from the respondent which analyse the matter.  I cannot see any proper basis upon which I could uphold the appeal.  The appeal is dismissed.  The appellant is to pay the costs of the respondent, including reserved costs. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:             21 June 2005

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	RA Pepper
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	15 June 2005
Date of Judgment:	15 June 2005