SZEHT v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1468

FEDERAL COURT OF AUSTRALIA

SZEHT v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1468

SZEHT v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

NSD 1516 of 2005

MADGWICK J
SYDNEY
7 OCTOBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1516 OF 2005

BETWEEN:	SZEHT APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	7 OCTOBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.
2. The applicant pay the respondent’s costs, assessed in the sum of $1,000.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1516 OF 2005

BETWEEN:	SZEHT APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	7 OCTOBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal against orders made by Federal Magistrate Smith in the Federal Magistrates Court on 8 August 2005.  His Honour dismissed an application to set aside orders earlier made by his Honour on 16 May 2005.  On that first occasion his Honour dismissed an application to the Federal Magistrates Court for judicial review of an adverse decision of the Refugee Review Tribunal (‘Tribunal’) because the applicant failed to appear when the matter was listed and no explanation was given.  On 8 August 2005 the applicant again failed to appear and it was in those circumstances that his Honour dismissed the application then before him.

2. The applicant has filed material from himself and from friends which tends to indicate that he suffers from symptoms commonly associated with depression.  However, there is no medical evidence before the court.  I am prepared to accept that the applicant has had episodes of considerable listlessness and that it has been very difficult for him to do various things, even some which are important to him, because of some psychological inability to rouse himself to do them.

3. He is not, however, without friends and there is, for example, no explanation as to why he did not ask a friend to write to the court below, or, as would seem to have been advisable, the Tribunal itself, explaining that his psychological state prevented him from appearing.  As it is, it has not been demonstrated that the learned Federal Magistrate made any error, even an unconscious one, in the exercise of his discretion to dismiss the application to set aside his earlier orders which disposed of the substantive application for judicial review.

4. The Federal Magistrate, it seems to me, was not required to provide written reasons for the dismissal of the set aside application because the reasons for it are obvious and it was an interlocutory matter. 

5. In any case, leave to appeal should be refused for the further reason that nothing has been put before the Court to indicate that there is any arguable case of jurisdictional error by the Tribunal so that to grant leave to appeal would ultimately, even if an appeal were actually upheld against the second decision of Federal Magistrate Smith, be futile.  The applicant rested his case for refugee status on a short written statement alleging fear of persecution for membership of the social group of bisexual people, but on his statement perhaps this could be better characterised as fear of persecution for reason of his membership of a social group constituted by homosexuals.  The Tribunal, in accordance with common practice, warned the applicant that it could not find in his favour on the papers which had come to it from the respondent's Department, and invited him to attend a hearing.  He did not do this, nor explain why he would not or could not do so, although he did advise the Tribunal of a change of address whereupon the Tribunal again invited him to attend the hearing but that further invitation also elicited no response.  The Tribunal member drew attention to the short, general and undetailed nature of the applicant's allegations and was not prepared to accept his claims of past treatment without more. 

6. The applicant had referred to a fear of particular harm should he be conscripted into the Polish Army.  The Tribunal member looked at some material from "War Resisters’ International", an organisation which had published a report on Poland.  It concluded that there were particular reasons for doubting whether a person in the position of the applicant, in his known circumstances, would in fact be conscripted, as distinct from merely assigned to army reserves.  The applicant has furnished no draft notice of appeal, nor any intended grounds of application to review the decision of the Tribunal, although on the last occasion the matter was before the Court I warned him that he was at risk about this if he did not show some reasonable basis for arguable success on the substance of the matter.  He complains orally that the Tribunal did not sufficiently consult Polish sources as to the veracity of his claims but looked instead to English material.  I can only assume this refers to the report to which I have referred.

7. This criticism entirely mistakes the nature of the Tribunal's function.  The Tribunal is, in general, under no duty to initiate inquiries which might make a case for the applicant.  The Tribunal is obliged merely to consider the case put by the applicant and to consider whether, in the light of the material, there is a real danger of persecution for a Convention reason should the applicant be returned to his or her own country.

8. In short, there is no sign of an arguable case which might ultimately be put to the Federal Magistrates Court which might impel that court to intervene to quash the Tribunal's decision.  I agree with the solicitor for the respondent that it would be futile to grant leave. 

9. The application will therefore be dismissed with costs, assessed in the sum of $1,000.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            20 October 2005

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 October 2005
Date of Judgment:	7 October 2005