SZFGD v Minister for Immigration & Multicultural Affairs [2006] FCA 654

FEDERAL COURT OF AUSTRALIA

SZFGD v Minister for Immigration & Multicultural Affairs [2006] FCA 654 SZFGD v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS NSD348 OF 2006 EMMETT J 23 MAY 2006 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD348 OF 2006

BETWEEN: SZFGD

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 23 MAY 2006

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: (1) The appeal be dismissed. (2) The appellant pay the first respondent's costs of the appeal. 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 NSD348 OF 2006

BETWEEN: SZFGD

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

FIRST RESPONDENT

REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

JUDGE: EMMETT J

DATE: 23 MAY 2006

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant, who claims to be a citizen of the People's Republic of China, arrived in Australia on 3 May 2004. On 2 June 2004, he lodged an application for protection (class XA) visa under the Migration Act 1958 (Cth) ('the Act'). On 10 June 2004, a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs ('the Minister'), refused to grant a protection visa. On 15 July 2004, the appellant applied to the second respondent, the Refugee Review Tribunal ('the Tribunal'), for a review of the delegate's decision. On 18 October 2004, the Tribunal affirmed the decision not to grant a protection visa. That decision was published on 10 November 2004. 2 On 15 December 2004, the appellant commenced a proceeding in the Federal Magistrates Court of Australia seeking Constitutional writ relief in respect of the Tribunal's decision. On 31 January 2006, the Federal Magistrates Court ordered that the proceeding be dismissed and ordered the appellant to pay the Minister's costs in the sum of $3,500. On 21 February 2006, the appellant filed a notice of appeal to this Court. That appeal is fixed for hearing before me today. 3 The grounds of appeal of 21 February 2006 make no sense. They are as follows: '1. The respondent failed to file and serve certain documents as ordered by the Court. 2. The respondent did not file notice of appearance until too late.' 4 When the matter was called on for hearing the appellant appeared without any legal representation but with the assistance of an interpreter. When asked if he wanted to say anything in support of his appeal, the appellant said that he relied on the material that had been provided to the Department and that he had no other evidence to offer to the Court. 5 The matter proceeded before the Federal Magistrates Court on the basis of an amended application filed on 4 April 2005. The grounds of that amended application were as follows: '(4) The Tribunal misconstrued and misapplied the law concerning its determination. I was unable to attend the hearing due to serious illness. This fact was not taken into consideration when the refusal decision was made by the Member.