SZHFV v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 666

FEDERAL COURT OF AUSTRALIA

SZHFV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 666

MIGRATION – application for leave to appeal dismissed

SZHFV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 235 OF 2006

GYLES J
24 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 235 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHFV
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:

GYLES J

DATE OF ORDER:

24 MAY 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed. 

2.The applicant pay the costs of the first respondent.

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 235 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHFV
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

JUDGE:	GYLES J
DATE:	24 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to appeal from a dismissal of an application to the Federal Magistrate’s Court as not competent (SZHFV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 151). None of the documents filed in support of the application for leave to appeal isolates any arguable error on the part of the Magistrate. The applicant relies upon the fact that he did not attend, or was not given notice to attend the Tribunal’s hearing. That matter was examined by the learned Federal Magistrate and determined contrary to the position of the applicant, based upon evidence which was set out in the judgment. The applicant has not pointed to any appealable error in the manner in which that issue was determined against him.

2. The learned Federal Magistrate also said that the gross delay in the proceeding would have been a proper basis to dismiss the matter peremptorily in any event.  The applicant arrived in Australia on 4 May 1997.  The Tribunal’s decision affirming the Delegate’s decision to decline the application for a protection visa was handed down on 14 September 1998.  The application for review was filed in the Federal Magistrates Court on 29 September 2005.  In my opinion, that is also a sound basis for dismissing the proceeding. 

3. I can see no possible argument that the decision here could be successfully attacked upon appeal.  I therefore dismiss the application for leave.  I order that the applicant pay the costs of the first respondent.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            30 May 2006

The Applicant appeared in person
Counsel for the First Respondent:	Ms RA Pepper
Solicitor for the First Respondent:	Phillips Fox
Date of Hearing:	24 May 2006
Date of Judgment:	24 May 2006