SZDPZ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 795

FEDERAL COURT OF AUSTRALIA

SZDPZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 795

SZDPZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1935 OF 2004

MOORE J
9 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1935 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDPZ APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	9 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Order 1 of the Federal Magistrates Court of 8 December 2004 in proceedings SYG1527 of 2004 be varied by deleting the words "as incompetent".

2.The appeal otherwise be dismissed.

3.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 1935 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	MOORE J
DATE:	9 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a matter that was commenced in this Court on 22 December 2004 by an application for leave to appeal against a judgment of a Federal Magistrate of 8 December 2004.  Leave was sought because it was assumed that the judgment of the Federal Magistrate was interlocutory.  That was probably because the Federal Magistrate dismissed the application for judicial review on the basis that it was incompetent. 

2. The Magistrate reached that conclusion on the mistaken belief that s 477(1A) of the Migration Act 1958 (Cth) ("the Act") applied to the decision of the Refugee Review Tribunal ("the Tribunal"). The Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") has conceded in this Court that the Federal Magistrate's understanding of the applicable legislative provisions was wrong. However, that mistake does not lead to the result that the appeal should be allowed.

3. The appellant arrived in Australia in September 1996.  He lodged his application for a protection visa on 20 September 1996.  A delegate of the Minister refused to grant him a protection visa on 12 March 1997 and that decision was then affirmed by the Tribunal on 19 December 1997.  The gravamen of the claims of the appellant was that he had a well founded fear of persecution because he had witnessed an incident at which a number of people were killed.  In the result, he claimed he was of interest to the authorities and was at risk of harm were he to return to Pakistan.  The Tribunal accepted the first part of this account but rejected the second.  It therefore made adverse findings of fact which destroyed an essential plank in the appellant's claims. 

4. After the Tribunal's decision the appellant was involved in litigation in the High Court and in this Court though those proceedings were ultimately dismissed by Emmett J on 20 February 2004.  The appellant then made an application for judicial review in the Federal Magistrates Court on 21 May 2004.  The application to that Court simply recounted that the court (viz. the Tribunal) had erred and three matters were advanced as grounds or particulars of that ground.  They are set out in paragraph 5 of the Federal Magistrate's judgment of 8 December 2004 (SZDPZ v Minister for Immigration [2004] FMCA 1016).

5. The Federal Magistrate correctly pointed out that none of those grounds disclosed a ground for relief.  The draft notice of appeal filed in this Court bears no resemblance to the issues raised before the Federal Magistrate and takes what appears to be a common form of notice of appeal lodged by appellants residing in the Griffith area.  Putting aside that characteristic, the notice simply does not raise any comprehensible grounds referrable to the case that was sought to be conducted before the Federal Magistrate. 

6. In written submissions filed by the appellant on 14 April 2005 and dated 4 March 2005, a number of submissions were made.  None of them point in any jurisdictional error on the part of the Tribunal though they do acknowledge and rely on the conceded error of the Federal Magistrate in dismissing the matter as incompetent.  Having regard to the decision of the Tribunal and the various ways that the appellant has sought to impugn the Tribunal's decision, no case of substance has emerged.  In those circumstances I accept that the appropriate order to make is as submitted by the Minister, namely that the orders of the Federal Magistrate should be varied by deleting the words "as incompetent" in Order 1 but that the appeal should otherwise be dismissed and the appellant ordered to pay the respondent's costs. 

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

Associate:

Dated:             22 June 2005

The Appellant appeared in person.
Counsel for the Respondent:	G R Kennett
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 June 2005
Date of Judgment:	9 June 2005