SZDNT v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1709

FEDERAL COURT OF AUSTRALIA

SZDNT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1709

SZDNT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD1670 OF 2004

GYLES J
15 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1670 OF 2004

BETWEEN:	SZDNT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	15 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1    Application for leave to appeal be dismissed.

2    The applicant pay the respondent’s costs assessed at $1,000.00.

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	NSD1670 OF 2004

BETWEEN:	SZDNT APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	15 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal, and for an extension of time to file and serve a notice of appeal, from a judgment of Raphael FM of 29 October 2004 (SZDNT v Minister for Immigration [2004] FMCA 779). The learned magistrate summarily dismissed the applicant’s application for review of a decision of the Refugee Review Tribunal made on 24 December 2002, which had affirmed the decision of the Minister’s delegate not to grant the applicant a protection visa. Raphael FM dismissed the application on the twin bases that it was an abuse of process and that the decision appealed from was a privative clause decision, and hence that the appeal was rendered incompetent by the operation of s 477(1A) of the Migration Act 1958.

2. The task of an applicant in these circumstances is to show an arguable basis for appeal.  The documents that have been filed on behalf of the applicant do not do so.  The application and affidavit in support are general and theoretical in nature and do not tie any alleged error to any part of the judgment below.  The applicant’s written submissions are to the same effect.  The unrepresented applicant is, not surprisingly, unable to advance his case.  I have read the learned magistrate's decision and no obvious error in the reasoning appears to me.  Indeed, it is worth recording that the present applicant challenged the very same Tribunal decision as he seeks to challenge in this proceeding in proceedings in the High Court which were remitted to this court and which were dismissed on the merits by Finn J at a time when the applicant was represented by counsel.

3. In those circumstances I am bound to and do dismiss the application.

4. The solicitor for the Minister seeks costs assessed in the gross sum of $1000 pursuant to O 62 r 4(2)(c) of the Federal Court Rules.  It seems to me that the amount of $1000 is a modest amount and likely to be less than the amount that would otherwise be taxed.  I note that the applicant has made no submission to the contrary.

5. I order that the applicant pay the costs of the respondent assessed at $1000.

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

Associate:

Dated:             21 December 2004

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	B Rayment of Sparke Helmore
Date of Hearing:	15 December 2004
Date of Judgment:	15 December 2004