SZLIO v Minister for Immigration and Citizenship

[2007] FCA 1499

FEDERAL COURT OF AUSTRALIA

SZLIO v Minister for Immigration and Citizenship [2007] FCA 1499

SZLIO v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 1896 OF 2007

ALLSOP J
24 SEPTEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1896 OF 2007

BETWEEN:	SZLIO Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	24 SEPTEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The matter stand over to 10.15 am on 27 September 2007 for hearing before the duty judge.

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 1896 OF 2007

BETWEEN:	SZLIO Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	ALLSOP J
DATE:	24 SEPTEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter, the respondent Minister last week made arrangements for the removal from Australia of the person identified as the appellant in the current proceedings.  The appellant made an urgent application to the Federal Magistrates Court for review of a decision made in 1996 by the Refugee Review Tribunal in connection with an application for a protection visa.  The Federal Magistrate dealt with that matter with despatch on Thursday, 20 September 2007. 

2. The reason for the dismissal of the application was that the delegate of the Minister had acted on Article 1F of the Convention Regarding the Status of Refugees (opened for signature 28 July 1951) ATS 5 (entered into force 22 April 1954) (“the Refugees Convention”) in denying a protection visa.  That basis for the rejection meant that the appeal or review of that decision had to be before the Administrative Appeals Tribunal, not the Refugee Review Tribunal.  An affidavit of the appellant filed in court today, which as yet has not been read, describes the conduct of the matter in 1996 and thereafter by some persons on his behalf.

3. The matter came to this Court, in effect, as an appeal from the Federal Magistrate’s decision.  The appeal was incompetent on the basis that the Federal Magistrate’s orders were interlocutory.  This was understood on Friday, 21 September 2007, and the application was treated as an application for leave to appeal. 

4. Mr Jones came into the matter on behalf of the appellant on Friday.  He frankly identified to the Court the absence of grounds for the appeal on Friday, but sought some time to obtain instructions about reinstituting in some fashion the Administrative Appeals Tribunal application which had been made in May 1996, but had been withdrawn or dealt with in some fashion summarily.  What occurred, as is set out in the appellant’s affidavit, was that two persons, acting on his behalf, lodged the respective applications in both the Refugee Review Tribunal and the Administrative Appeals Tribunal.  The Refugee Review Tribunal application was pressed, and not the Administrative Appeals Tribunal application.

5. Nevertheless, eleven years have passed since those events and what the appellant seeks now, in effect, is a continuation of the order that I made on Friday to allow him to prosecute his review application in the Administrative Appeals Tribunal.  The application therefore in form today is an oral application for the continuation of the orders that I made on the morning of Friday, 21 September 2007, in support of the application to the Administrative Appeals Tribunal.  In due course there will be a need to regularise the process.  The appeal is, as Mr Jones recognises, hopeless, but at the same time he has an application on a different ground.  That regularisation can await events later this week.

6. The Minister is prepared to have the matter adjourned to this coming Thursday, 27 September 2007 to deal with the matter.  Within that time, no doubt it will become clearer precisely what the position of the Administrative Appeals Tribunal is; whether there is power in the Administrative Appeals Tribunal to deal with the matter as the appellant now wishes it to, and if it does have that power, the relevant timeframe in which that application may be heard. 

7. For those reasons, I need not make any other order other than to stand the matter over before the duty judge on Thursday, 27 September 2007 at 10.15 am, recognising, as all the parties do, that the onus is on the appellant to bring forward a proper application and justify the continuation of the order that I made on Friday, 21 September 2007.

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

Associate:
Dated:       25 September 2007

Solicitor for the Appellant	Michael Jones Solicitor
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 September 2007
Date of Judgment:	24 September 2007