SZGYJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1742

FEDERAL COURT OF AUSTRALIA

SZGYJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1742

SZGYJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 2164 OF 2005

GRAHAM J

24 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2164 OF 2005

BETWEEN:	SZGYJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT
JUDGE:	GRAHAM
DATE OF ORDER:	24 NOVEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        There be no order as to 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 2164 OF 2005

BETWEEN:	SZGYJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT

JUDGE:	GRAHAM
DATE:	24 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is a matter which comes before the Court pursuant to a notice of appeal filed 9 November 2005.  It records a desire by the appellant to appeal from a judgment of the Federal Magistrates Court of Australia, said to have been handed down on 12 August 2005.  In point of fact the application which came before the Federal Magistrates Court was itself filed on 12 August 2005.  That application was heard on 31 October 2005 and judgment was delivered on 1 November 2005. 

2. A notice of objection to competency under section 477(1A) of the Migration Act 1958 (Cth) (“the Act”) had been filed by the Minister in the Federal Magistrates Court on 5 September 2005. Notwithstanding the terms of this objection to competency, the Federal Magistrate appears to have engaged in a consideration of the Appellant's broader claims. In paragraph 33 of her reasons for judgment the learned Federal Magistrate said:

   “Other than disagreeing with the findings and conclusions of the Tribunal, the Applicant had nothing cogent to say in support of his Application.”

3. The Minister submitted to the Federal Magistrate that the factual findings made by the Refugee Review Tribunal (“the Tribunal”) were open to it for the reasons given by the Tribunal and that the Federal Magistrates Court could not review the Tribunal's decision in that regard. The Minister submitted that the Tribunal had explained why it did not accept the Appellant's claims, and also that the conclusions that it reached were open to it. The Federal Magistrate accepted the Minister's submissions in relation to the findings of fact made by the Tribunal. However, as the Appellant was unrepresented before the Federal Magistrate, she expressed a concern that an argument might have been advanced that s424A of the Act required the Tribunal to give notice in writing to the Appellant that the omission in the protection visa application of a subpoena may be information possibly enlivening s424A of the Act. At paragraph 52 of her reasons the Federal Magistrate said:

   “The question for consideration is, whether the questioning by the Tribunal about the protection visa application … in which the Applicant appears to have affirmed that he did not mention the Subpoena, was information that can be said to have been given by the Applicant to the Tribunal for the purpose of the Tribunal review application.”

4. At paragraph 55 of her reasons the Federal Magistrate found that the information was excluded under s 424A(3)(b) of the Act from the requirement of s424A(1)(a), and therefore no issue arose under s424A. Her Honour proceeded to say in paragraphs 56 and 57 of her reasons:

   “56.The findings of fact made by the Tribunal were open to it, on the material before it, and supported the Tribunal's conclusion that the Applicant had not experienced harm amounting to persecution, nor that he faced a real chance of harm amounting to persecution were he to return to the PRC. 

   57.Accordingly the Tribunal's decision is a privative clause decision and pursuant to s474A of the Act, this Court has no jurisdiction to interfere. Further, the First Respondent filed a Notice of Competency, on 5 December 2005, on the basis that the Application before this Court was filed more than 28 days after the handing down of the Tribunal's decision. Accordingly, pursuant to s477(1A) of the Act, the application is incompetent.

5. Notwithstanding the decision of the Federal Magistrate on these matters, the Appellant filed the current notice of appeal.  It was said that the appeal was brought in accordance with leave granted on 3 November 2005.  The fact of the matter is that the notice of appeal has never previously come before the Court and no application for leave to appeal was ever before the Court.  Under the heading “Grounds of Appeal” the notice of appeal states:

   “The appellant did pay for making an application for a judicial review through a migration agent.  Unfortunately, the agent did not lodge an application for him.  This is out of his control.  Considering the appellant has language difficult to communicate with court, it is very  hard for him to find what his real migration situation is except by the help of other people.  It is clear that his former migration agent’s response for the delay to lodge the judicial review.  Therefore the appellant wishes to have a chance to do so.”

6. The matter is before the Court today for directions.  Upon the matter being called Ms Quinn who appears for the Minister, presently the only named Respondent, indicated that the Appellant, who is unrepresented, wished to discontinue his appeal. 

7. As can be seen, I have explored at some length the history of the matter, much of which is recounted in the reasons for judgment of the Federal Magistrate of 1 November 2005. 

8. The Appellant recognises that his application to the Federal Magistrates Court for constitutional writ relief was out of time.  The Appellant has said to me that after speaking with his wife he "might as well go home as well".  By “home” he has indicated that he means the People's Republic of China.  He has further indicated that, notwithstanding his grievances with his migration agent concerning his inaction following a payment of money said to have taken place on 3 April 2005 and the consequential denial of an opportunity to present his case properly to the Federal Magistrates Court, he now wishes to discontinue his appeal.

9. Given the strictures imposed by ss477(1A) of the Act, it seems to me that no useful purpose would be served by allowing the matter to remain in this Court's list. Accordingly, as requested by the Appellant, I order that the appeal be dismissed. I make no order as to costs.

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

Associate:

Dated:             30 November 2005

The Applicant appeared in person.

Solicitor for the Respondent:	T Quinn of Phillips Fox
Date of Hearing:	24 November 2005
Date of Judgment:	24 November 2005