SZMMR v Minister for Immigration & Citizenship [2009] FCA 969
SZMMR v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 322 of 2009
SPENDER J 7 AUGUST 2009 SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 322 of 2009
BETWEEN:
SZMMR Applicant
AND:
MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
JUDGE:
SPENDER J
DATE OF ORDER:
7 AUGUST 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application for an extension of time be dismissed.
2.The applicant to pay the costs of the first respondent of and incidental to the application, to be taxed if not agreed.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 322 of 2009
BETWEEN:
SZMMR Applicant
AND:
MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent
REFUGEE REVIEW TRIBUNAL Second Respondent
JUDGE:
SPENDER J
DATE:
7 AUGUST 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for an extension of time in which to file and serve a Notice of Appeal from a judgment of Barnes FM, on 18 March 2009, dismissing with costs the applicant’s application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal).
The Tribunal, by a decision dated 29 May 2008 and handed down on 10 June 2008, affirmed a decision of a delegate of the Department of Immigration and Citizenship not to grant to the applicant a protection visa.
A Notice of Appeal is to be filed within 21 days. The current application was filed on 17 April 2009, some nine days after that time expired. An extension of time is required.
I would be minded to grant an extension of time if there were reasonable prospects of success of an appeal, but, for the reasons which follow, I am not satisfied that there is any real prospect of success. Therefore the application for an extension of time will be refused.
The grounds on which any proposed appeal will be brought are set out in a draft Notice of Appeal filed by the applicant. They are:
1. The Federal Magistrates erred in law .
2The Federal Magistrates was wrong in finding that the Refugee Review Tribunal (“the Tribunal”) acted properly in its findings.
The difficulty is that the applicant misunderstands what has to be demonstrated before an appeal can be allowed. In particular, the applicant, when I asked why the Federal Magistrate was wrong, said to me, “I didn’t say she was wrong. The interpreter’s voice was too low.”
In his oral submissions to this Court today, the applicant complained about aspects of the Tribunal’s hearing, including that he was asked too many questions and “the events happened a long time ago so how could I remember everything?” His essential complaint is, “How could they come to the conclusion that they did?”
The Tribunal based its decision on an adverse finding of credibility of the applicant. The applicant confirmed that his real complaint was, “I tell the truth. I am a truthful person. Everything I told the RRT did happen.” This criticism is a criticism of the finding made by the Tribunal. The applicant disagrees with that conclusion and says that he did tell the truth. The difficulty is that such a finding is a finding of fact and it is not within the competence of the Federal Magistrates Court or the Federal Court of Australia to engage in merits review of the case conducted in the Tribunal.
This misunderstanding of what a Court can do concerning, in particular, findings of credibility made by the Tribunal infects all of the submissions by the applicant. The submissions which he made to this Court seek to address the merits of the findings by the Tribunal. It is not competent for this Court to allow an appeal on that basis.
For these reasons, in my judgment the applicant would have no prospects of success on the grounds he seeks to rely upon. There would therefore be no utility in the granting of an extension of time within which to appeal.
The orders of the Court are that:
1. The application for an extension of time in which to appeal is dismissed.
2.The applicant is to pay the costs of the first respondent of and incidental to the application, to be taxed if not agreed.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.
Associate:
Dated: 27 August 2009
Counsel for the Applicant:
The Applicant appeared in person
Solicitor for the Respondent:
Australian Government Solicitor
Date of Hearing:
7 August 2009
Date of Judgment:
7 August 2009
Details
AGLC
Re Wave Capital Ltd [2009] FCA 969
Case
[2009] FCA 969
Decision Date
CaseChat Overview and Summary
The case of Re Wave Capital Ltd involved the applicant, Wave Capital Ltd, and the first respondent, the Australian Securities and Investments Commission (ASIC). The primary nature of the dispute was Wave Capital Ltd's application for an extension of time to file documents in the proceedings, which was opposed by ASIC. The matter was heard in the Federal Court of Australia.
The legal issues the court was required to decide centred on the circumstances under which an extension of time could be granted in a legal proceeding. The applicant argued that there were exceptional circumstances warranting the extension, while ASIC contended that the application was not made in good faith and should be denied. The court needed to assess the merits of the application and determine whether the applicant's reasons for the delay were sufficient to warrant an extension.
The court found that Wave Capital Ltd had not provided a compelling reason for the delay in filing the documents. The reasons provided were not considered exceptional, and the applicant had failed to demonstrate that the delay would not prejudice the first respondent. The court held that the application for an extension of time did not meet the threshold for approval and was dismissed. Additionally, the court ordered that the applicant pay the costs of the first respondent associated with the application, which would be subject to taxation if the parties could not agree on the amount.
Orders
Orders of the court
1. The application for an extension of time be dismissed.
2. The applicant to pay the costs of the first respondent of and incidental to the application, to be taxed if not agreed.