SZHAV v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 1136

FEDERAL COURT OF AUSTRALIA

SZHAV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1136

Migration Act 1958 (Cth)

SZHAV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 569 OF 2006

TAMBERLIN J
7 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 569 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHAV Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGE:	TAMBERLIN J
DATE OF ORDER:	7 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.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 569 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZHAV Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGE:	TAMBERLIN J
DATE:	7 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an appeal from a decision of Federal Magistrate Raphael given on 16 March 2006.  The appellant appeared in person before the Federal Magistrate on that occasion.  When the appellant appeared before me this morning, he was asked to make a statement as to the substance of his case in relation to alleged errors committed by the Refugee Review Tribunal (“the Tribunal”) and/or by the Federal Magistrate.  The appellant did not advance any ground or reason in relation to the Refugee Convention, although he did refer to the fact that there was some confusion at one stage because the file could not be found at the registry and this meant that he was not given a proper opportunity to present his case.

2. The difficulty arose because there was a dismissal of the appellant's application by Registrar McIllhatton on 10 February 2006 when the appellant did not attend the callover. On 7 March 2006, the appellant applied to the Court for the application to be reinstated and provided an affidavit with an explanation for his non-attendance at the hearing on 10 February 2006. This concerned an error by the registry in relation to information given to the appellant regarding the date for the callover. The appellant was given an opportunity to have the matter re-opened, and the application for reinstatement was heard by Federal Magistrate Raphael on 16 March 2006.

3. At the hearing before the Federal Magistrate, the appellant appeared in person. From the reasons of the learned Magistrate, it appears that no grounds were made out or advanced which would warrant the setting aside of the appellant’s application to have the matter reinstated.  His Honour noted that the appellant had indicated that he was aware of the reasons he believed that the Tribunal had erred, and also that the appellant had been given the opportunity to take advantage of the Minister's scheme for assistance in December 2005. Accordingly, the learned Magistrate determined that he would allow the application to be restored and hear it on that day. His Honour came to the conclusion that the appellant had demonstrated no error in the decision below. He dismissed the matter and ordered the payment of costs. 

4. I have considered the affidavit filed by the appellant in support of this appeal, the allegations he has made in relation to the Tribunal’s decision and the alleged disadvantage he experienced in presenting his case to the Federal Magistrate.  Nevertheless, in my view, this is a case in which the Federal Magistrate was entitled to reach the conclusion which he did and the Tribunal was also entitled to find that it was not satisfied that the appellant had a valid claim for a protection visa. I have not found any error in the decision of the Federal Magistrate or that of the Tribunal which would warrant either decision being set aside.

5. I have also had regard to the history of the matter and I am satisfied that the appellant has had a sufficient opportunity to present his case. I am not persuaded that there has been any error of law or principle which would warrant the setting aside of the decision, and accordingly I 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:        25 August 2006

Applicant appeared in person.
Counsel for the Respondent:	Ms T Quinn
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	7 August 2006
Date of Judgment:	7 August 2006