SZGNN v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 751

FEDERAL COURT OF AUSTRALIA

SZGNN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 751

SZGNN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 337 OF 2006

TAMBERLIN J
SYDNEY
28 APRIL 2006

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 337 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN:	SZGNN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	28 APRIL 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The appeal is dismissed with 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 337 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

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

JUDGE:	TAMBERLIN J
DATE:	28 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal to the Court from a decision of Federal Magistrate Nicholls delivered on 6 February 2006.  In his judgment, Federal Magistrate Nicholls dismissed an application for review of a decision of the Refugee Review Tribunal (“RRT”) given on 28 September 2005.  The RRT found that it did not have jurisdiction to review the decision of a delegate of the Minister of Immigration and Multicultural and Indigenous Affairs (“the Minister”) made on 8 December 1997 refusing a protection visa to the appellant.  When the matter came on for hearing today, I asked the appellant what he wished to say in relation to the appeal.  He read from a written submission which had been prepared, and the substance of this was to the effect that if he went back to China, he would be persecuted.

2. There was nothing raised in the appellant’s submissions to cast any doubt on the decision of the Federal Magistrate or of the RRT in relation to this matter.  I note that in the Court file there is a copy of the written submission in Chinese which was interpreted to the Court today by a Mandarin interpreter. I have also taken into account two other documents in the file which are written in English, one from the President of the Sydney Chinese Catholic Community dated 11 October 2005 stating that the appellant is a sincere participant in the Catholic religious evangelisation activities, has attended Catechism class from 2 August 2005 to 13 September 2005, and was baptised and confirmed on 4 October 2005.

3. I also note that a Certificate of Baptism and Confirmation is attached to this reference. 

4. In this case, the Court is not able to consider the merits of the application because it manifestly lacks jurisdiction for two basic reasons.  The first is that the earlier decision of the RRT was the subject of an application to the Federal Magistrates Court and the application was dismissed.  There was no appeal to this Court from that earlier decision. 

5. Federal Magistrate Nicholls found that it was open to the RRT to find that it had already discharged its functions under the Act and no longer had jurisdiction in relation to that matter.  This finding was based on the fact that an earlier Tribunal had already made a decision on this matter previously and the respondent Minister had not allowed the lodging of any future application for a protection visa.  The Federal Magistrate also found no reason to set aside the RRT’s ruling that it did not have jurisdiction because the application for review was filed outside of the mandatory time limit.  I can see no error in the legal reasoning of the Federal Magistrate, and accordingly dismiss the appeal with costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            23 June 2006

The Appellant appeared in person.
Counsel for the Respondent:	Ms S Mason
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	28 April 2006
Date of Judgment:	28 April 2006