SZFPO v Minister for Immigration
[2005] FMCA 909
•27 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZFPO v MINISTER FOR IMMIGRATION | [2005] FMCA 909 |
| MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Turkey – where applicant has mental health issues – no reviewable error. |
| Judiciary Act 1903 (Cth), s. 39B Migration Act 1958 (Cth), ss. 475A, 477 |
| Applicant: | SZFPO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File Number: | SYG 238 of 2005 |
| Judgment of: | Scarlett FM |
| Hearing date: | 27 June 2005 |
| Date of Last Submission: | 27 June 2005 |
| Delivered at: | Sydney |
| Delivered on: | 27 June 2005 |
REPRESENTATION
| The Applicant: | Appeared in person |
| Counsel for the Respondent: | Mr Mitchell |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The application is not competent as the court has no jurisdiction to hear it.
The Applicant is to pay the Respondent's costs fixed in the sum of $4,500.00 and I allow nine (9) months to pay.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 238 of 2005
| SZFPO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
This is an application to review a decision of the Refugee Review Tribunal that was made on 1 October 2004 and handed down on
27 October 2004.
The application for review was filed on 28 January 2005. On its face the application appears to be out of time as it was filed more than
28 days after the applicant was notified of the decision. The respondent has filed a notice of objection to competency.
The provisions of s.477(1)(a) would not apply if the decision was not a privative clause decision. So if there were a jurisdictional error, then the respondent would not be able to rely on the provisions of
s.477(1)(a).
The applicant arrived in Australia on 6 July 2001 on a subclass 573 higher education sector visa; a student visa. Unfortunately, on
12 November 2002 he was admitted to the James Fletcher Hospital and given psychiatric treatment. On the 26th of that month a decision was made to cancel the applicant's student visa, although the applicant applied to the Migration Review Tribunal for review of that decision. The applicant lodged an application for a subclass 050 bridging visa on 6 December. That was refused on 9 December and the Migration Review Tribunal affirmed that decision on 17 December. On
13 January 2003 the Migration Review Tribunal set aside the applicant's student visa.
The applicant applied for a protection visa on 18 December 2003 which was refused on 20 December. He lodged an application on
20 February 2004 for review of that decision by the Refugee Review Tribunal. Notwithstanding the fact that that application appeared to be out of time, the tribunal proceeded to hear the application on
27 September and the applicant attended.
The Refugee Review Tribunal affirmed the decision of the minister not to grant the applicant a protection visa. The applicant then lodged his application for judicial review on 28 January 2005. As I said, this was out of time. The application has been listed for final hearing today. Since the proceedings have bee filed in this court the application has had directions hearing on 11 February, 14 April, 12 May, 26 May,
2 June. The reason for this history is that the applicant has had periods of hospitalisation including hospitalisation in the Cumberland Hospital, which is a hospital that provides treatments to patients with mental illness.
The applicant has sought legal assistance from the Legal Aid Commission and the commission has indicated that it will not be appearing for him. The applicant has attended court today.
His application does not set out any ground for review. It states that the applicant would like an Australian temporary protection visa and that he is a born-again Christian. The applicant says that he is a Christian Australian-Jew Socialist and is opposed to experimentation and interpretation regarding the issue of illness. He refers to an unnamed Swiss doctor, as he referred today. He indicates that there may be a persecution risk in his native country and said that he was not happy as a Jew Christian in his home country and he wishes to continue to live in Australia. He hopes for peace, love and goodwill.
The applicant has filed submissions in which he has sought various adjournments or a three-year visa. The submissions do not assist in providing a ground of review. They do indeed support the fact that he has been diagnosed with a mental illness in the past which appears to be long standing. His written submissions are rambling and largely irrelevant to the application. The applicant has addressed the court today and whilst he denies that he is a sufferer from any form of mental illness, I am of a view as a layperson that his explanations are thought disordered and consistent with my experience as a state magistrate in the mental health area years ago of symptoms of people suffering from a form of schizophrenia or other schizophrenic illness.
The applicant appears to have no insight into the fact that he is a sufferer from a form of mental illness and in fact denies it.
He informed the court that he had recently been hospitalised against his will and was released from hospital on 20 June.
The regrettable fact for the applicant is that I am not satisfied that there is any ground for review of the decision of the Refugee Review Tribunal. The applicant appeared to the tribunal member to be consistent. His presentation appeared to be consistent with that described in medical reports and the tribunal formed the view that he was unlikely to be subjected to any discrimination in Turkey for religious or political reasons or indeed whether as a sufferer from mental illness he would face a chance of persecution in Turkey.
The tribunal was of the view that the applicant was not likely to suffer persecution for religious or political or mental health reasons in his home country and was not satisfied on the evidence that the applicant had a well-founded fear of persecution within the meaning of the convention. The tribunal affirmed the decision not to grant a protection visa. In my view no reviewable error has been shown.
As there is no reviewable error in the decision, in my view, the application is not competent and the court has no jurisdiction to hear it.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 29 June 2005
0
0
2