SZANA v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1203

FEDERAL COURT OF AUSTRALIA

SZANA v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1203

SZANA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 746 OF 2004

STONE J
14 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 746 OF 2004

BETWEEN:	SZANA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	14 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the costs of the respondent.

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	N 746 OF 2004

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

JUDGE:	STONE J
DATE:	14 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for extension of time to file and serve a notice of appeal from a judgment of Hely J which was delivered on 12 March 2004.  An extension of time is required because a notice of appeal was not filed and served within the time limited by O 52 r 15(1)(a)(i) of the Federal Court Rules (21 days from the date on which judgment is pronounced). 

2. In an affidavit accompanying his application the applicant states that he had the flu for three weeks after his Honour’s judgment was delivered, that he had difficulties in obtaining legal aid and that, being in detention, he did not have the opportunity to prepare his case.  He also states that he received the decision late and was given the wrong information as to how to make an appeal.  The application attaches a draft notice of appeal which is largely unintelligible.  It certainly provides no assistance in assessing whether an appeal would have any chance of success. 

3. The applicant is a national of Turkey of Kurdish ethnicity.  He has been in Australia since October 1987.  During that time the applicant has made four separate applications for a protection visa and one application for a bridging visa.  The fate of those applications at various stages is described in the reasons of the primary judge.  For present purposes it is sufficient to note that the four applications were considered by four delegates of the Minister, two Refugee Review Tribunals, the Migration Review Tribunal, two Federal Magistrates and four Judges of this Court, not including the present proceeding.  Although various legal issues were identified, at no stage was any merit found in the substantive claims made by the applicant. 

4. In the proceedings before the primary judge, the question of the validity of the original protection visa was raised, as was the validity of the later protection visa application accepted by the Department of Immigration and Multicultural and Indigenous Affairs on 31 July 2003.  In both cases those issues were determined by final judgments given by Allsop J on 9 December 2003 and 30 January 2004 respectively.  Hely J held that it was not open to the applicant to reagitate those issues in the present proceedings and added that in any event he agreed with the conclusions reached by Allsop J in both of those judgments.  Accordingly Hely J dismissed the application before him. 

5. On 20 August 2004 I made certain orders for the preparation of this application for hearing.  They included that the applicant file supporting documents, submissions and a list of authorities by 7 September 2004.  On 6 September he filed submissions in support of his application.  Those submissions claim that he is ‘criminally’ kept in detention and make accusations of corrupt conduct against a number of bodies.  Those accusations are unsupported and largely incoherent.  I do not propose to discuss them further. 

6. The applicant filed further submissions on 13 September.  They also seek to reagitate issues that were decided by Allsop J; see [4] above.  The only authority to which the applicant referred is Minister for Immigration & Multicultural Affairs v Li [2000] FCA 1456. That case is relevant to the issues raised before Allsop J but is not relevant to the present application.

7. Finally, the Court received what purports to be a medical certificate that refers to the applicant’s attendance at Bankstown Hospital.  I have some doubts about the authenticity of this certificate but as it refers to attendance at the Hospital on 18 April 2003 I do not need to consider it further.  Evidence of attendance at the Hospital on one night more than a year ago and almost a year before Hely J handed down his judgment, is clearly not relevant to the present application. 

8. I agree with the order made by Hely J for the reasons given by his Honour.  In my view an appeal from his Honour’s judgment would have no chance of success and accordingly I would refuse leave to appeal from his Honour’s orders.  The applicant must pay the costs of the respondent. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:        

Dated:             14 September 2004

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	14 September 2004
Date of Judgment:	14 September 2004