SZABE v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1468

FEDERAL COURT OF AUSTRALIA

SZABE v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1468

SZABE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N1313 of 2003

MADGWICK J
4 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1313 OF 2003

BETWEEN:	SZABE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	4 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for extension of time to file and serve a Notice of Appeal from the judgment and orders of Driver FM given on 25 July 2003 is granted.

2.The costs of this application are reserved until the final hearing.

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	N1313 OF 2003

BETWEEN:	SZABE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	4 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. This is an application for an extension of time to file and serve a Notice of Appeal from the judgment and orders of Driver FM given on 25 July 2003.  The application was accompanied by an affidavit sworn by the applicant and a draft Notice of Appeal.  The applicant was legally represented by counsel for at least some of the proceedings before the learned Federal Magistrate and thereafter he represented himself via videolink but later his former counsel came back into the matter.

2. The judgment of the learned Federal Magistrate concerns a claim by the applicant for refugee status and his dissatisfaction with an adverse decision of the Refugee Review Tribunal.  At least as far as the material before me goes, it has to be said that the applicant's case does not look promising as one for appeal, however, for reasons that have been discussed in argument which I need not detail in this judgment but which the solicitor for the Minister will well understand, I am not satisfied that the best cast was necessarily put on whatever legal points, if any, might have been available to the applicant before the learned Federal Magistrate.  He is only twenty-five days out of time to file the appeal which lies as of right.

3. The intrinsic subject matter is very important.  The applicant is in prison and if he is shut out from appealing his fate, so far as being deported from Australia is concerned, will, as a practical matter, be sealed against him.  He has been trying to obtain legal aid and still has not received a decision from the last body to which he has applied, namely the Victorian Bar.  I am by no means critical of the Bar in that regard.

4. Despite unsatisfactory aspects of the case for an extension of time within which to appeal, there are nevertheless some other practical matters that should be addressed.  I am very reluctant to decide the matter finally against the applicant while there appears to be some chance that he might obtain competent legal assistance to put his case the best way it can be put, and time is drifting by.

5. I think the most practical course, which in the quite peculiar and non-precedential circumstances of this case, is that he should be granted leave to appeal.

6. I will recommend that the Chief Justice schedule the matter for hearing before a single judge.  In anticipation of acceptance of that and that single judge being myself, I will conduct the appeal by video-link.

7. The costs of this application are reserved until the final hearing.

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

Associate:

Dated:            12 December 2003

The Applicant appeared in person.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	4 December 2003
Date of Judgment:	4 December 2003