FEDERAL COURT OF AUSTRALIA

SZCOZ v Minister for Immigration and Multicultural Affairs [2006] FCA 422

SZCOZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS & ANOR

NSD 2539 of 2005

GRAHAM J

13 MARCH 2006

SYDNEY

ON APPEAL FROM A MAGISTRATE IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The Refugee Review Tribunal be added as a Second Respondent.

2.         The Appeal be dismissed.

3.         The Appellant pay the First Respondent’s costs fixed in the agreed sum of $2,200.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

ON APPEAL FROM A MAGISTRATE IN THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     I regret to say that I find the current appeal totally without merit.  When the matter was before the Federal Magistrates Court of Australia the application for constitutional writ relief was dismissed.  The Appellant was ordered to pay the respondent Minister's costs in the sum of $2,500 and a direction was given that no further application for review of the decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 14 January 2004 (reference N03/47471) or for review of the decision of the Delegate of the First Respondent dated 15 September 2003 or for review of any notification of those decisions be accepted for filing without prior leave of the court. 

2                     I fully endorse the orders made by the learned Federal Magistrate and in particular the last mentioned order.  In dealing with the current appeal little more needs be said than that the learned Federal Magistrate correctly stated the facts and correctly applied the law to the facts.  His decision is without error. 

3                     On 27 June 2003 the Appellant arrived in Australia.  On 21 July 2003 he applied for a protection (Class XA) visa and was assisted in so doing.  On 15 September 2003 the Minister's delegate decided not to grant the Appellant a protection visa.  On 2 October 2003 the Appellant applied to the Tribunal for review of the Minister's delegate's decision.  On 5 December 2003 the Appellant was informed that the Tribunal was unable to make a decision in his favour on the material which the Tribunal then had before it. 

4                     In the circumstances he was invited to attend a hearing at 1 pm on 21 January 2004.  That invitation included notification as to what might happen were he to fail to attend.  Relevantly it said:

‘If you do not attend the hearing and the Tribunal does not postpone the hearing it can make a decision on your case without further notice.’

5                     On 14 December 2003 the Tribunal received a facsimile from the Appellant's agent, being a response to the hearing invitation.  This response was signed by the Appellant who has been identified for the purposes of these proceedings as SZCOZ.  The response form contained a question:

‘Do you want to come to a hearing?’

To which the response was:

‘No, I/we do not want to come to a hearing.

            I/we consent to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable me/us to appear before it.’

6                     Faced with the Appellant's response the Tribunal proceeded to reach its decision on the application for review.  That decision was dated 17 December 2003 and was handed down on 14 January 2004. The Tribunal concluded that the Appellant was not a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol.  It did not accept that the Appellant had a well-founded fear of persecution in India for reasons of political opinion or any other Convention reason.

7                     On 29 January 2004 the Appellant filed an application for constitutional writ relief in the Federal Magistrates Court of Australia (‘the first proceedings’).  On 9 July 2004 an amended application was filed in the first proceedings.  On 6 September 2004 the first proceedings were dismissed for default of compliance with the order for service of the amended application made on 28 May 2004 and for default of appearance on 6 September 2004.

8                     On 6 October 2004 an application was made to the Federal Magistrates Court of Australia to set aside the default order of 6 September 2004 made in the first proceedings.  On 1 December 2004 a Federal Magistrate refused to set aside the default order.  On 21 December 2004 leave to appeal from that decision to this Court was sought and on 18 February 2005 a Judge of this Court refused leave to appeal. An application for special leave to appeal to the High Court from that decision was refused by the High Court on 8 September 2005. 

9                     In the circumstances a fresh application was brought by the Appellant in the Federal Magistrates Court of Australia (‘the second proceedings’) in which constitution writ relief was sought in respect of the decision of the Tribunal. That application was decided by Federal Magistrate Smith on 5 December 2005 and it is from that decision that the current appeal has been brought. 

10                  When asked to identify any error in the reasoning of Federal Magistrate Smith or in the decision reached by the Tribunal the Appellant was unable to suggest any error at all. 

11                  His case was that he was not heard by the Tribunal.  He confirmed that he did not appear before the Tribunal and did so in the course of his submissions on more than one occasion.  If I understood his submissions correctly, he accepted that having failed to appear the Tribunal had no option but to decide the case the way it did.  The Appellant said that he was not aware of the rules and regulations and he did not realise that it was important for him to attend the Tribunal hearing. In the course of his submissions the Appellant also said that the Tribunal didn't give proper consideration to the circumstances of his case, but he did not proceed to identify any jurisdictional error. 

12                  If I understand the situation correctly, the purpose of the Appellant in bringing the current appeal has been what one might call a ‘last-ditch stand’ to secure a rehearing of his case on the merits.  Needless to say, it is not open to the Court on an appeal such as this to give a person such as the Appellant a second chance to present a case before the Tribunal which he chose not to present when given the opportunity to do so. 

13                  In the circumstances the appeal should be dismissed with costs.

Associate:

Dated:              18 April 2006