SZOCH v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 The appellant is an Indian citizen. He arrived in Australia on 26 September 2008 and about six weeks later he applied for a protection visa. He said that his family had secretly converted from Sikhism to Christianity and he claimed to fear persecution because his family was threatened when local Sikhs and a group of "fighters" for Sikhism (known as Sikh Jaths) learned of his family's attendance at a Christian church in a nearby town. He obtained a visa to travel to Australia for World Youth Day. When he returned home he told his Sikh friends in the village about his experience. He claimed that this was perceived by some as an attempt to proselytise to local youth. Consequently, he said he was threatened and told he would be killed unless he reverted to Sikhism. Worse still, he said that fanatics attacked his family in their home and, when he managed to get to another town, the fanatics chased him there too. 2 The first respondent (Minister) refused to grant his application and the second respondent (Tribunal) dismissed his application for review. As will shortly become apparent, the reasons do not matter. The appellant's application for judicial review in the Federal Magistrates Court was filed over six and a half months outside the period prescribed by s 477(1) of the Migration Act 1958 (Cth) (Migration Act) and on 5 May 2010 Nicholls FM dismissed his application for an extension of time pursuant to s 477(2). This is an appeal from that decision. The Minister has filed an objection to competency. For the reasons that follow that objection is properly made. This court has no jurisdiction to entertain the appeal. 3 Section 24 of the Federal Court of Australia Act 1976 (Cth) confers jurisdiction on the Court to hear and determine appeals from judgments of the Federal Magistrates Court exercising original jurisdiction under a law of the Commonwealth. Its power to judicially review a decision of the Tribunal reviewing a decision of the Minister to refuse a visa arises under s 476(1) of the Migration Act. But s 476A(3)(a) of the Migration Act provides: (3) Despite section 24 of the Federal Court of Australia Act 1976, an appeal may not be brought to the Federal Court from: (a) a judgment of the Federal Magistrates Court that makes an order or refuses to make an order under subsection 477(2). 4 It follows that the appeal in this matter is incompetent and must be dismissed. 5 The Minister applies for costs. The only thing said against that proposition by the appellant is that he does not have the capacity to pay the costs. The ordinary rule is that costs should follow the event. The reasons advanced do not justify a departure from the ordinary rule. 6 I therefore order that: (1) The appeal is dismissed. (2) The appellant pay the first respondent's costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann.