SZDPH v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 453

FEDERAL COURT OF AUSTRALIA

SZDPH v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 453

MIGRATION – no point of principle

SZDPH AND SZDWN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 366 OF 2005

MOORE J
15 APRIL 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 366 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDPH
FIRST APPELLANT

SZDWN
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

15 APRIL 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application filed on 22 March 2005 be dismissed.

2.The appellants pay the respondent's costs of the application.

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 366 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZDPH
FIRST APPELLANT

SZDWN
SECOND APPELLANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	MOORE J
DATE:	15 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application to set aside orders made by this Court on 22 March 2005 dismissing an appeal.  The appeal was against a judgment of a Federal Magistrate of 17 February 2005 who dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 26 March 2004 handed down with reasons for decision on 13 April 2004.

2. The appeal was dismissed on 22 March 2005 because the appellants did not appear. The order was made under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). In support of the application to set aside the orders of 22 March 2005 the appellants filed an affidavit in support which reveals that the first appellant attended Court on 22 March 2005 but had been delayed by half an hour or so. The question of whether the orders made on 22 March 2005 should be set aside turns on the question of whether there is an arguable case sought to be raised on the appeal as I am satisfied an adequate explanation has been given why the appellants did not appear.

3. Turning to the question of whether the appeal would raise a question of substance, I have had the benefit of submissions this morning by Mr Kumar of counsel appearing for the appellants.  I also have an amended notice of appeal that was filed on 12 April 2005 as a result of directions I made the preceding week.  At that directions hearing I made it clear to the first appellant that it would be necessary for him to establish some arguable basis on which the appeal might proceed.

4. The amended notice of appeal does not, in terms, appear to me to raise any arguable point that the Federal Magistrate erred in failing to identify jurisdictional error on the part of the Tribunal.

5. Mr Kumar has put in a variety of ways what is said to be an arguable jurisdictional error on the part of the Tribunal.  He noted that the Tribunal believed that the first appellant had been a member of the Akali Dal party.  His case before the Tribunal was based in substantial part on his membership of and activity in that party, which the first appellant said led to his harassment, abduction, torture and being the subject of false charges.

6. The Tribunal, in its reasons for decision, explained why it rejected each of those contentions, that the first appellant had in fact been harassed, that he had been arrested or kidnapped and that he had been the subject of false charges.  Accordingly, it found that he had not suffered persecution in the past and there was no real chance that he would suffer persecution in the foreseeable future.  That conclusion appeared to be upon to the Tribunal but, more relevantly, its reasons do not reveal any jurisdictional error.

7. I am satisfied that the appeal, if allowed, is doomed to fail in the sense that no point has been identified which might establish jurisdictional error on the part of the Tribunal and error on the part of the Federal Magistrate.

8. Accordingly, I propose to dismiss the application to set aside the orders of 22 March 2005.  I order the application be dismissed and the appellants pay the respondent's costs of the application.

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

Associate:

Dated:             21 April 2005

Counsel for the Appellants:	Mr Kumar
Solicitor for the Respondent:		Blake Dawson Waldron
Date of Hearing:		15 April 2005
Date of Judgment:		15 April 2005