SZFEY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1763

FEDERAL COURT OF AUSTRALIA

SZFEY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1763 ` SZFEY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD1592 OF 2005 EMMETT J 12 OCTOBER 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1592 OF 2005

BETWEEN: SZFEY

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 12 OCTOBER 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs in the sum of $1950. 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 NSD1592 OF 2005

BETWEEN: SZFEY

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 12 OCTOBER 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant claims to be a citizen of India. He arrived in Australia on 12 November 2003 and on 3 May 2004 lodged an application for a protection (class XA) visa under the Migration Act 1958 (Cth) ('the Act'). On 19 May 2004, a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister'), refused to grant a protection visa. The appellant then applied to the Refugee Review Tribunal ('the Tribunal') on 25 May 2004 for review of the delegate's decision. On 27 October 2004, the Tribunal affirmed the decision not to grant a protection visa. 2 The appellant then commenced a proceeding in the Federal Magistrates Court seeking Constitutional writ relief in respect of the Tribunal's decision under s 39B of the Judiciary Act 1993 (Cth). On 18 August 2005, for reasons given on that day, Scarlett FM ordered that the application be dismissed and that the applicant pay the Minister's costs in the sum of $4,400. 3 The appellant filed notice of appeal to this Court on 6 September 2005. The matter came before me for directions on 28 September 2005. On that day, the matter was listed for hearing today. The appellant was directed to file and serve written submissions no later than five clear working days before today. No submissions were filed. When the matter was called on for hearing today there was no appearance for the appellant. 4 The notice of appeal to this Court discloses no arguable ground of appeal. The grounds are simply as follows: 'A writ of mandamus second respondent (Tribunal) re determine the application for a protection visa in accordance with law, such further or other orders as the court seen fit.' 5 If anything, those words suggest relief that might be granted pursuant to s 39B, they certainly do not constitute grounds. The grounds before the Federal Magistrates Court were as follows: 1. The Tribunal member's failure to take into account a relevant consideration that the appellant was an active member of the Congress Party and not just a supporter. 2. The Tribunal member failed to take into consideration that as a member of the family unit that was under constant threat of grievous bodily harm at the hands of Chenna Reddy's hired hoodlums the appellant was a member of a particular social group that feared persecution. 3. The Tribunal failed to take into relevant consideration the constant harassment for almost three years. 4. The Tribunal used critical adverse information obtained after the delegate's decision which was not provided to the appellant before the hearing nor put to the appellant during the hearing. 5. The Tribunal misapplied the test or, alternatively, misinformed the appellant about the test. 6. The Tribunal member's reasoning could be labelled irrational or illogical so as to indicate a failure to perform the review function at all. 7. The Tribunal member failed to give proper and adequate reasons. 8. The Tribunal erred in failing to consider all claims and issues put forward by the appellant.