Lee v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 467

FEDERAL COURT OF AUSTRALIA

SZAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 467

SZAAD v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 301 OF 2005

HELY J
4 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 301 OF 2005

BETWEEN:	SZAAD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	4 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal and for an extension of time to file and serve a notice of appeal be dismissed with costs.

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 301 OF 2005

BETWEEN:	SZAAD APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	4 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 21 August 2002 the Refugee Review Tribunal (‘the RRT’) handed down a decision which affirmed the decision of the Minister’s delegate not to grant a protection visa to the present applicant.  On 17 September 2002 the applicant sought a review of that decision in proceedings which were instituted before the Federal Magistrates Court.  In those proceedings he was represented by a solicitor, Mr J. Bharati of Bharati Solicitors, Campsie.  On 23 January 2003 Driver FM made an order by consent that the application be dismissed and that the applicant should pay the respondent’s costs in an agreed amount of $1200.

2. On 1 March 2005 more than two years after the making of those orders by consent, the applicant lodged in this Court a document styled ‘Application for Leave to Appeal & Extension of time to file and serve Notice of Appeal’ in relation to the Federal Magistrate’s decision.  That application was supported by an affidavit sworn by the applicant which provided as follows:

   ‘1.       I am an Indian citizen by birth and came to Australia and I applied for a protection visa under the Determination of Refugee Status in Australia.

   2.        The delegate for the Minister for Immigration and Multicultural Affairs refused to grant my protection visa.  I applied for review with the Refugee Review Tribunal, Sydney.  The refugee Review Tribunal affirmed the delegate’s decision.

   3.        Prior to my departure from India.  I was living in India.  I was problem while I was in India.

   4.        I require Leave to Appeal and extension of time to file and serve Notice of Appeal.

   5.        My application is out of time because I do not know the prescribe time limit to file the appeal.  I am underrepresented.  I do not know the consequence the order.

   6.        Considering the circumstances stated above, I am expecting that Federal Court will make favourable decision in relation to my protection claim in India.

   7.        I will provide more detail later.’

3. A draft notice of appeal was also provided with that affidavit.  The draft notice of appeal follows a form which by now has become familiar.  It really conveys nothing of any value.  It certainly does not disclose the existence of a viable appeal. 

4. When the matter came on for hearing this morning the applicant appeared for himself with an interpreter.  I mean no disrespect to the applicant when I say that he apparently does not understand what is involved in this application.  Even though I endeavoured to explain to him that his task was to demonstrate why he should have an extension of time for a period of two years within which to appeal from a decision, when his then solicitors had consented to the substance of that decision, all that he was prepared to tell me was that his life is in danger if he returns to India. Clearly what he seeks is a merits review of the RRT’s decision.  Eventually the applicant informed me that he had instructed his lawyer to carry on with the case before the Federal Magistrates Court and that he never gave consent to his application being dismissed.  I endeavoured to ascertain from the applicant when he first learned that the application before the Federal Magistrates Court had been dismissed but all that he would tell me was that he had never been told of that matter.  That is completely inconsistent with the application which is now made.

5. The Court is placed in a very difficult position when applications are brought by litigants who appear without the benefit of legal assistance and do not understand the English language let alone the Australian legal system.  The Court endeavours, and I believe I have endeavoured, to assist as far as possible in alleviating those disadvantages.  However, it is the applicant’s application and assistance going beyond the focussing of the applicant’s attention on the problems with which he is confronted is not warranted.  In short, I do not think that I would be justified in embarking on, in effect, a Royal Commission into the conduct of the applicant’s former solicitors.  That is particularly so when he told me that he paid a second person to prepare the application for leave to appeal and the supporting affidavit.  If the applicant did pay somebody money to prepare those documents then his money has been wasted as they are really quite useless.

6. I am therefore left in the position where two years after consent orders have been made, an application for an extension of time to appeal against those orders is made without any explanation for the delay in seeking to appeal and based only upon a draft notice of appeal which does not disclose any viable ground of appeal.  In those circumstances, the only conclusion open to me is that the present application is an abuse of the process of the Court.  It is without any demonstrated merit and it should therefore be dismissed with costs.

7. The order which I make is that the application for leave to appeal and for an extension of time to file and serve a notice of appeal should be dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:            20 April 2005

The applicant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	4 April 2005
Date of Judgment:	4 April 2005