SZDQC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1649 (10 September 2004)

Last Updated: 19 January 2005

FEDERAL COURT OF AUSTRALIA

SZDQC v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1649

SZDQC v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1246 OF 2004





EMMETT J
10 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1246 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDQC APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	10 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The notice of appeal filed on 20 August 2004 be dismissed as incompetent.
2. The appellant pay the respondent’s 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	N1246 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZDQC APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE:	10 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The appellant is a citizen of Indonesia who arrived in Australia on 18 April 1999. On 7 May 1999 she lodged an application for a protection visa under the Migration Act 1958 (Cth) (‘the Act’). On 4 August 1999 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 6 September 1999 the appellant sought review of that decision by the Refugee Review Tribunal (‘the Tribunal’). On 7 March 2000 the Tribunal affirmed the decision not to grant a protection visa.

2 There is no suggestion that the appellant was not notified of that decision within a short time after the date on which it was made. Indeed, there is a suggestion that she was advised of the decision on 23 March 2000. Nevertheless, the appellant took no steps in relation to the decision until 24 May 2004 when she commenced a proceeding in the Federal Magistrates Court of Australia. She had previously written to the Minister on 10 March 2004 asking the Minister to exercise the power under s 417 of the Act to intervene in her case. The Minister declined to do that on 16 April 2004.

3 In her application to the Federal Magistrates Court the appellant stated that her grounds of review were as follows:

‘The Refugee Review Tribunal failed to find that the Convention provides for protection against well founded fear being persecuted for reasons of a Convention reason, whether or not the persecuting state provides for the persecution feared pursuant to a law of general application.
Particulars: [t]he applicant has fear to be persecuted being a Catholic Chinese. She stated in the hearing that the government is run by the Muslims. She has no protection from the Muslims.’

4 The Minister filed a notice of objection to the competency of the application pursuant to ss 477(1A) and 477(2) of the Act. Section 477(1A) provides that an application to the Federal Magistrates Court for a writ of mandamus, prohibition or certiorari, or an injunction or a declaration in respect of a privative clause decision must be made within 28 days of the notification of the decision. Section 477(2) provides that the Federal Magistrates Court must not make an order allowing, or which has the effect of allowing, an appellant to lodge an application outside the period specified in that sub-section.

5 On 4 August 2004 Federal Magistrate Raphael upheld the objection to competency and dismissed the application with costs. In his Honour’s reasons, his Honour observed that an objection to competency is only a relevant matter if the Court finds that the decision which the appellant is seeking to review is a privative clause decision. His Honour therefore considered submissions made on behalf of the appellant by her counsel. The Tribunal recorded that counsel indicated that the reason why an earlier application had not been made was that the appellant had no documents and no money.

6 It was submitted that the Tribunal did not consider the appellant's situation as a woman. However, the Federal Magistrate was satisfied that the Tribunal had done so. It was submitted, on behalf of the appellant, that she was unwilling to avail herself of the protection of the Indonesian authorities because she did not consider that they would be able to protect her. The Federal Magistrate noted that that was a matter which was entirely in the hands of the Tribunal to decide and was not a matter which could be considered by the Court. His Honour concluded that the Tribunal had not fallen into error in the manner in which it made its decision and there was certainly no jurisdictional error. In those circumstances, the decision was a privative clause decision and was, therefore, barred by the operation of ss 477(1A) and 477(2).

7 It is clear that the Federal Magistrate dismissed the application as incompetent. As an interlocutory order, the appellant would not be precluded from commencing a further proceeding, if she were able to establish that the decision of the Tribunal was infected by jurisdictional error, such that the decision of the Tribunal could not be characterised as a privative clause decision. However, there is nothing in the application to the Federal Magistrates Court that indicates that there is any possible ground for establishing any such jurisdictional error.

8 Since the order of the Federal Magistrates Court was an interlocutory order, leave is required for any appeal to this Court. No application for leave has been made. However, even if the notice of appeal were treated as an application for leave, it is quite clear that leave would be refused. The notice of appeal specifies the grounds of appeal in the following terms:

‘His Honour Federal Magistrate Raphael erred in failing to hold that the decision of the Refugee Review Tribunal made on 7 March 2000 involved an error of the law, being an error including an incorrect interpretation of the applicable law [or an] incorrect interpretation of the law [or an] incorrect interpretation of... the facts as found by the RRT.’

9 There appears to me to be no utility in requiring further steps to be taken in the proceeding. The appellant indicated that there was nothing further she was able to say in relation to the grounds upon which the Federal Magistrates Court could interfere with the decision of the Tribunal. In the circumstances, it appears to me to be appropriate to accede to the request made on behalf of the Minister that the appeal be dismissed as incompetent.

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

Associate:
Dated: 17 December 2004

The appellant appeared in person
Solicitor for the Respondent:	Ms E Warner, Australian Government Solicitor
Date of Hearing:	10 September 2004
Date of Judgment:	10 September 2004