SZAJF v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1139

FEDERAL COURT OF AUSTRALIA

SZAJF v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1139

SZAJF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N259 OF 2004

EMMETT J
17 MARCH 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N259 OF 2004

BETWEEN:	SZAJF APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	17 MARCH 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        Leave to file a Notice of Appeal out of time is refused. 

2.        The application filed on 1 March 2004 be dismissed.

3.        The applicant pay the Minister’s costs of the proceeding.

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	N259 OF 2004

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

JUDGE:	EMMETT J
DATE:	17 MARCH 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The present applicant is a citizen of India who arrived in Australia on 24 December 2001.  On 21 January 2002 he applied for a Protection Class XA Visa under the Migration Act 1958 (Cth) (‘the Act’). The application was refused by a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) on 31 May 2002. On 26 June 2002 the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision.

2. On 26 February 2003 the Tribunal affirmed the decision of the delegate.  The applicant then applied to the Federal Magistrates Court for judicial review of the decision of the Tribunal.  On 5 February 2004 Federal Magistrate Raphael dismissed the application with costs.  The applicant appeared in person without representation.  On 1 March 2004 the applicant applied for an extension of time to file and serve a Notice of Appeal.  A draft Notice of Appeal was filed with that application.

3. The Minister opposes the extension of time on the basis that the grant of time would be futile because there is no substance in the appeal.  When invited to make submissions in support of his application today the applicant simply said that he would like to remain in Australia.  He asserted that he had sent a Notice of Appeal to his lawyer within 21 days from the orders made by the Magistrate, however, there has been no appearance by any lawyer and no evidence as to who the lawyer might be.

4. The Magistrate was unable to find any grounds upon which there could be any review of the decision of the Tribunal.  The draft Notice of Appeal does not disclose any ground upon which there could be any conclusion reached by this Court that there was any error on the part of the Magistrate.  The grounds simply assert that the Magistrate failed to find error of law, jurisdictional error and procedural fairness and otherwise referred to the decision of the High Court in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 and a decision of this Court in SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74.

5. I am prepared to accept that there may have been some misunderstanding on the part of the applicant as to the time within which a Notice of Appeal should be filed, however, it seems to me there would be no utility in extending the time since there is no substance in the appeal.  Accordingly, I propose to refuse leave to file a Notice of Appeal out of time and dismiss the application.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             2 September 2004

The Applicant appeared in person
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	17 March 2004
Date of Judgment:	17 March 2004