FEDERAL COURT OF AUSTRALIA
SZDRS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 597
MIGRATION – appeal from Federal Magistrates Court in relation to a decision of the Refugee Review Tribunal – appeal dismissed
Migration Act 1958 (Cth)
SZDRS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 38 OF 2005GYLES J
2 MAY 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 38 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZDRS
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
GYLES J
DATE OF ORDER:
2 MAY 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The appellant pay the costs of the respondent.
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 38 OF 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:
SZDRS
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
GYLES J
DATE:
2 MAY 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This purports to be an appeal from a decision of Federal Magistrate Smith of 22 December 2004 (SZDRS v Minister for Immigration [2004] FMCA 1040) dismissing an application for judicial review of a decision of the Refugee Review Tribunal made on 31 March 2004 and handed down on 27 April 2004 affirming a decision of a delegate of the Minister made on 28 October 2003 refusing an application for a protection visa made pursuant to the Migration Act 1958 (Cth).
The notice of appeal to this Court is not in proper form and identifies no appealable error by the learned Federal Magistrate. That was pointed out to the appellant as long ago as 9 February 2005 when leave was granted to serve an amended notice of appeal. That was not done although a document headed ‘Amended Application’ was filed. In addition to being an inappropriate document, it contains no grounds of appeal. There is simply nothing before me which would indicate any ground for appeal.
It needs to be pointed out that the sequence of events was that the appellant was advised by the Tribunal that it had considered the material before it but was unable to reach a decision in his favour on that information alone and invited him to a hearing on 30 March 2004. The consequences of not appearing were made clear. There was no reply and the Tribunal made its decision without a hearing on 31 March 2004.
The learned Federal Magistrate has carefully examined the sequence of events in relation to the Tribunal proceedings (SZDRS v Ministerfor Immigration [2004] FMCA 1040). I need not reproduce that examination. In a manner which appears to me to be in accordance with the law, his Honour held that the Tribunal was perfectly entitled to proceed as it did and decide the application without further inquiry.
Both then and now the appellant says that it was a mistake that he did not attend the Tribunal hearing. The learned Federal Magistrate explained in his reasons the inability of the Federal Magistrates Court to do anything about that, and I have indicated the same thing. As the learned Federal Magistrate explained to the appellant, it is not the function of the Magistrates Court to decide the merits of the case. I have also endeavoured to explain that the only role of this Court in the process is to correct errors by the Federal Magistrates Court.
This appeal is entirely without merit. The appeal is dismissed and I order that the appellant pay the costs of the respondent.
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: 13 May 2005
Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: JAC Potts Solicitor for the Respondent: Clayton Utz Date of Hearing: 2 May 2005 Date of Judgment: 2 May 2005
- AGLC
- SZDRS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 597
- Case
- [2005] FCA 597
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the primary judge of the Federal Court had erred in his interpretation of the relevant provisions of the Migration Act 1958 (Cth). The appellant contended that the primary judge had failed to properly consider the public interest factors relevant to the grant of a bridging visa and had instead focused solely on the appellant’s unlawful entry into Australia. The respondent, on the other hand, argued that the primary judge had correctly considered the relevant public interest factors and had properly exercised his discretion in refusing to grant the bridging visa.
In a unanimous decision, the High Court held that the appeal should be dismissed. The court found that the primary judge had properly considered the relevant public interest factors and had not erred in his interpretation of the Migration Act. The court held that the primary judge had correctly concluded that the public interest did not favour the grant of a bridging visa to the appellant, given his unlawful entry into Australia and the risk of encouraging further unlawful migration. The court also held that the appellant had not demonstrated any error in the primary judge’s assessment of the public interest factors. Accordingly, the appeal was dismissed, and the appellant was ordered to pay the respondent’s costs.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the costs of the respondent.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: GYLES J
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