SZCOZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 175 (18 February 2005)

Last Updated: 7 March 2005

FEDERAL COURT OF AUSTRALIA

SZCOZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 175

MIGRATION – No point of principle.































SZCOZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1927 OF 2004

MOORE J
18 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1927 OF 2004

BETWEEN:	SZCOZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	18 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent's costs.
3. The costs be fixed in the sum of $1000.

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 1927 OF 2004

BETWEEN:	SZCOZ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	18 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex Tempore – Revised)

1 This is an application for leave to appeal from a judgment of a Federal Magistrate of 1 December 2004 dismissing an application to set aside orders earlier made dismissing the application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 17 December 2003. The orders sought to be set aside in the application filed on 6 October 2004 had been made by the Federal Magistrate in the absence of the applicant on 6 September 2004 for default of compliance with an order for service of the amended application and for default of appearance in court on 6 September 2004.

2 The applicant is a citizen of India. He arrived in Australia on 27 June 2003. He lodged an application for a protection visa (Class XA) on 21 July 2003. On 15 September 2003 a delegate of the Minister of Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant the visa. On 2 October 2003 the applicant applied to the Tribunal for review of that decision. The applicant did not attend the hearing before the Tribunal. On 17 December 2003 the Tribunal affirmed the decision of the delegate not to grant the visa. The applicant filed an application under the Judiciary Act 1903 (Cth) and the Migration Act 1958 (Cth) in the Federal Magistrates Court for review of the Tribunal's decision on 29 January 2004.

3 On 28 May 2004 Registrar Hedge made orders by consent that, amongst other things, the applicant file and serve an amended application giving complete particulars of each ground of review being relied upon by the applicant by 9 July 2004. The Registrar also made an order that the matter may be listed in the non-compliance list before a Federal Magistrate if the applicant did not comply with the order referred to above. The applicant elected to take part in the "RRT Legal Advice Scheme (NSW)". On 25 June 2004 the Federal Magistrates Court Registry allocated the applicant a lawyer from the panel list. That lawyer was informed in writing of the direction that the applicant file an amended application by 9 July 2004 and the details of what the scheme involved, which included meeting with the applicant and providing advice and any amended application as soon as possible. A copy of his original application was enclosed.

4 The legal practitioner for the applicant confirmed, on 2 July 2004, that he had given the applicant advice by post. An amended application was filed on 9 July 2004. However, the applicant failed to serve it on the respondent. The essence of the amended application was that:

The member of the Tribunal was misleading in determining that skills, knowledge and ability to relocate in India were the part of the refugee definition as defined under UN Convention. In fact it was a fear of persecution on the conventional grounds which should have been the key factor in assessing the relocating in India rather than the applicant's skills, knowledge and ability to relocate in India.

5 The matter was listed for directions on 6 September 2004. The Minister advised the applicant of this hearing more than a month before hand. The applicant did not appear and the Federal Magistrate dismissed his application for default of compliance with the order for service of the amended application made on 28 May 2004 and for default of appearance that day. On 6 October 2004 the applicant filed what was effectively a notice of motion setting aside the orders made in his absence. This was accompanied by an affidavit saying that the applicant did not speak, read or write English and that his lack of understanding of English led him to fail to comply with the order for service of his amended application. The Federal Magistrate heard this motion on 1 December 2004.

Federal Magistrate's Decision

6 His Honour set out the applicant's reasons for non-attendance and failure to serve the amended application on the respondent. His Honour accepted that the applicant had no apparent legal training and little or no understanding of English, and as such did not understand the need to serve his amended application on the respondent. His Honour noted that in ordinary circumstances that default would be excused. His Honour remarked however that the applicant's non-appearance was a more serious matter and his Honour was not satisfied the applicant had acted sufficiently promptly to have the letter explained to him.

7 His Honour said that even if he could have been persuaded to excuse the applicant's non-attendance he would not set aside his dismissal as the amended application did not raise a serious issue to be tried. His Honour found the Tribunal had been unable to make a favourable decision for the applicant because the applicant had not advanced sufficient material to support his application.

The applications before this Court

8 The applicant filed his application for leave to appeal and extension of time in which to file and serve a notice of appeal on 21 December 2004. This was accompanied by a supporting affidavit and draft notice of appeal. In his affidavit the applicant stated he had not yet received a copy of the reasons for judgment. He deposed that his application was out of time because he did not know the prescribed time limit to file the appeal and he is unrepresented. He concluded by stating that in these circumstances he is expecting that the Federal Court will make a favourable decision in relation to his protection claim in India.

9 The grounds in the draft notice of appeal are set out below:

2.	The Single judge of the Federal Magistrate Court in his Honors Judgment delivered on the 1 December 2004 failed to find error of law, Jurisdictional error Procedural fairness and relief under Section 39B of the Judiciary Act 1903.
3.	The grounds and relief is very much similar with a recent High Court Judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002). Catchwords: – Immigration – Refugee – Protection s visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Register of Tribunal for purpose of review – Nature and extent of obligation – Migration Act 1958 (Cth), ss 148(3), 424(1).
4.	The Honorable trial judge erred in considering the real state of affairs of me, I feared harm. And also the present ruling government fail to protect civilians life, which is a worldwide concern today. Honorable Trial judge did not take it into consideration.
5.	S474 of the Migration Act is ineffective as per the recent two decision of the High Court of Australia. Honorable trial judge did not consider this in favor of me.
6.	The applicant will face persecution if she returns to his country of origin as there are significant level of violation of human rights, this was not considered by honourable judge.
7.	Recent High Court judgement: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 1 (4 February 2003)
8.	Recent Federal Court of Australia judgement: SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74 (14 February 2003)

10 The judgment sought to be appealed from was not decided on the basis of any of the grounds of review advanced by the applicant. The original orders dismissing the application resulted from the applicant's non-attendance and failure of the applicant to comply with certain directions concerning the pleadings. That involved the exercise of a discretionary power. Nothing put before this Court would suggest that the applicant has any arguable case that the discretion miscarried. I have read the reasons for judgment of the Federal Magistrate and, on their face, they appear to involve a regular exercise of the discretionary power.

11 I have read the salient parts of the Tribunal's decision of 17 December 2003. That decision suggests that the Tribunal's consideration of the applicant's application for a protection visa was unexceptionable.

12 I dismiss the application for leave to appeal and order the applicant to pay the respondent's costs.

13 I order that the costs be fixed in the sum of $1000.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 7 March 2005

The Applicant appeared in person.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	18 February 2005
Date of Judgment:	18 February 2005