SZACG v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 741

FEDERAL COURT OF AUSTRALIA

SZACG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 741

SZACGv MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 766 of 2003

BRANSON J
16 JULY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 766 OF 2003

BETWEEN:	SZACG APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	16 JULY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 766 OF 2003

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

JUDGE:	BRANSON J
DATE:	16 JULY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant has applied for an extension of time in which to file and serve a notice of appeal.  He wishes to appeal from a judgment of Federal Magistrate Raphael given on 28 May 2003.  Believing that he had twenty‑eight days within which to file a notice of appeal from the judgment of the Federal Magistrate, the applicant prepared a notice of appeal which he dated 25 June 2003.  It appears that it was when he sought to file that notice that he learnt that he was required to file the notice of appeal within twenty‑one days of the pronouncement by the Federal Magistrate of his judgment.

2. The Federal Court Rules provide that the Court or a Judge for ‘special reasons’ may at any time give leave to file and serve a notice of appeal.  Special reasons in this context means simply something which takes the case out of the ordinary.  In this case I am satisfied that the circumstances are such that the case is not of an ordinary kind.  The present applicant speaks English only slightly and he is not familiar with the relevant law or the practice of the Federal Court.  He has not had access to legal advice with respect to his proposed appeal.

3. However the above conclusion is not of itself enough to warrant the granting of an extension of time.   I am also required to be satisfied that it would be an appropriate exercise of the discretion of the Court to grant the applicant the extension of time which he seeks.  An important factor to be taken into account in considering whether or not it would be appropriate to grant the extension of time is the apparent merit of the proposed appeal.

4. The draft notice of appeal which is annexed to the applicant’s application raises two proposed grounds of appeal.  The first of those is that the Federal Magistrate failed to consider the specific circumstances of the applicant as a member of a particular social group.  The second is that the applicant was not provided with legal advice pursuant to the pilot scheme put in place by the Minister.

5. In fact the Magistrate did consider whether the applicant was a member of a particular social group.  The Magistrate did that in paragraph 11 of his reasons for judgment.  The Magistrate noted that the Refugee Review Tribunal (‘the Tribunal’) was satisfied that as an ethnic Yugoslav Albanian, albeit from a mixed marriage, he would receive effective protection in his country of nationality and would not be at risk of serious harm on that basis.

6. There is no evidence before me which enables me to know one way or the other whether the applicant received advice under the pilot scheme.  The applicant has told me, and I accept, that he could not get advice from Legal Aid.  It does not appear that the Magistrate was asked to adjourn the hearing to enable the applicant to receive legal advice from any source.  His Honour was thus not in error in failing to adjourn the hearing for this, or any purpose.

7. The applicant has made it plain this morning that what he seeks to do on his proposed appeal is to argue again the merits of his case for a protection visa.  The only legitimate purpose of an appeal from a decision of a Federal Magistrate is to enable this Court to review the decision given by the Federal Magistrate for legal error.  Before the Court this morning the applicant has not suggested that any legal error was made by the Federal Magistrate. 

8. The applicant has today indicated that he is now in possession of material, relevant to his claim for a protection visa, that was not before the Tribunal or the Federal Magistrate.  If the material is of real significance, the applicant would be well advised to draw it to the attention of the Minister.  However, the applicant’s possession of new material does not assist him on this application.  The Court could not conclude that the Federal Magistrate erred in not considering material that was not before him.

9. As I am of the view that no useful purpose would be served by granting the applicant the extension of time which he seeks, his application is dismissed with costs. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             17 July 2003

Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 July 2003
Date of Judgment:	16 July 2003