SZHIV v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 461

FEDERAL COURT OF AUSTRALIA

SZHIV v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 461

SZHIV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and ADMINISTRATIVE APPEALS TRIBUNAL
NSD 1 OF 2006

WILCOX J
21 APRIL 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1 OF 2006

BETWEEN:

SZHIV
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

ADMINISTRATIVE APPEALS TRIBUNAL
SECOND RESPONDENT

JUDGE:

WILCOX J

DATE OF ORDER:

21 APRIL 2006

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        The application 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 1 OF 2006

BETWEEN:

SZHIV
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

ADMINISTRATIVE APPEALS TRIBUNAL
SECOND RESPONDENT

JUDGE:	WILCOX J
DATE:	21 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application under s 39B of the Judiciary Act 1903 (Cth) by which the applicant seeks the issue of constitutional writs against the Administrative Appeals Tribunal (‘the Tribunal’). The Tribunal, which was constituted by Professor G.D. Walker, Deputy President, made a decision on 30 September 2005 affirming a decision of a delegate of the first respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), to cancel the applicant's visa. The visa was cancelled under s 501 of the Migration Act 1958 (Cth) on the basis of the applicant's criminal record.

2. The applicant was legally represented before the Tribunal and put a case directed to the question whether the Tribunal should exercise its discretion to set aside the cancellation decision.  Although the applicant did not formally concede that he failed to pass the character test, the learned Deputy President found that there was no question that he did so fail.  No complaint has been made about that finding. 

3. When the matter was called today, the applicant told me he was expecting a lawyer to appear for him.  He identified a particular barrister and gave the first name of a solicitor who was said to be instructing that barrister.  My associate contacted the barrister; she was told he had been told something about the case but had no brief to appear and, indeed, he did not know that the matter was before this Court.  He gave the full name of the solicitor.  I was then informed by the de facto wife of the applicant that the solicitor was on his way to the court.  Although it was then well past the time at which any lawyer who was appearing should have been in the court, I adjourned the matter for about an hour to enable the applicant, if he could, to arrange for his lawyer to be in attendance.  When I returned to the Bench there was no lawyer present.  No explanation was given for the absence.

4. In the circumstances, I indicated that the matter should proceed and I invited the applicant to put submissions in support of his application.  I explained to the applicant that the Court cannot review the Tribunal’s findings of fact or the exercise of its discretion and that it would be necessary for him to identify some jurisdictional error.  I explained that this required him to point to an error of law or a failure to carry out the proper procedures in relation to the hearing.  The applicant then put some matters to me. However, none of them amounted to a submission of jurisdictional error.  The applicant pointed to his family ties in Australia and the absence of close relatives in Vietnam.  He also claimed to have learnt his lesson and to have changed his ways and he asked the Court to give him a final chance. 

5. These submissions echo submissions that were put by his counsel to the Tribunal. They are not submissions to which the Court is entitled to give effect, in an application under s 39B of the Judiciary Act.  In the result, no submission of jurisdictional error has been put to me. 

6. I have carefully read the Tribunal's decision but I am unable to detect any jurisdictional error.  Although I appreciate that the applicant disagrees with the Tribunal's conclusion as to the proper exercise of its discretion, it is clear that the Tribunal understood the nature of the task before it and undertook a careful review of all of the material that was relevant to the exercise of that discretion.  There is no basis for the Court to interfere with the Tribunal's decision.

7. The application will be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             4 May 2006

The Applicant appeared in person.
Counsel for the First Respondent:	Ms S A Mason
Solicitor for the First Respondent:	Phillips Fox
The Second Respondent filed a Submitting Appearance.
Date of Hearing:	21 April 2006
Date of Judgment:	21 April 2006