SZAUN v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1565

FEDERAL COURT OF AUSTRALIA

SZAUN v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1565

SZAUN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N1490 of 2004

MADGWICK J
2 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1490 of 2004

BETWEEN:	SZAUN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	2 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time within which to appeal is refused.

2.The application is dismissed.

3.The applicant is to pay the respondent’s costs, fixed in the sum of $750.

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	N1490 of 2004

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

JUDGE:	MADGWICK J
DATE:	2 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:

1. The applicant is a Ukrainian national who came to Australia on 22 November 2000 and soon thereafter applied for a protection visa.  Following the rejection of that application by a delegate of the respondent Minister, he sought a review by the Refugee Review Tribunal (‘the Tribunal’) of the delegate’s decision.  The Tribunal, however, gave a decision affirming the delegate’s decision.  The applicant then applied for judicial review of the Tribunal’s decision by the Federal Magistrate’s Court.  Federal Magistrate Raphael dismissed the application on 17 September 2004.  The applicant wished to appeal from that judgment but did not do so within the 21 days limited for such appeals by O 52 r 15(1)(a) of the Federal Court Rules.

2. Five days after the expiry of that period, on 13 October 2004, the applicant filed an application for extension of time within which to appeal.  The matter which concerns me, and which the respondent Minister has agitated, is that there appears to be no arguable case to put to the Court in support of the projected appeal. 

3. The applicant’s case before the Tribunal was that he was an active member of the Ukrainian Communist Party and was opposed to the government.  He claimed he had been assaulted on account of his political opinion and feared future harm if returned to the Ukraine. 

4. The Tribunal invited the applicant to attend a hearing in order to give evidence and make submissions in support of his application. After some vacillation about whether he wished to attend the hearing, the applicant ultimately did not appear before the Tribunal at the hearing. The Tribunal then decided pursuant to s 426A of the Migration Act 1958 (Cth) (‘the Act’) to proceed to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.

5. The Tribunal Member was unimpressed by the lack of detail which the applicant had provided to the delegate and did not accept that the applicant was, as he claimed, a member of the Communist Party or active on its behalf.  Consequently, the Tribunal did not accept that the harm that he had sustained, or might sustain, was by reason of his political opinion.  Further, the Tribunal found that the applicant’s claim to have been threatened and beaten by the security service (‘SBU’) and allied claims about that body did not accord with certain information about conditions in the Ukraine available to the Tribunal.  The Tribunal therefore did not accept that he had been mistreated by the SBU for his political activities.  On account of the lack of detail, the Tribunal also did not accept that the police would be unwilling to protect political activists who opposed the ruling regime. 

6. The ground of the application, which the Federal Magistrates Court was considering, asked the Court to consider:

   ‘... whether issues of fairness in my case have been observed.  I ask for review whether my statements have been assessed in accordance with the case.  I question methods used in the assessment of my case.’

7. The accompanying affidavit recounted various assertions as to the applicant’s alleged association with the Communist Party and attacks allegedly made upon him.  It suggested no jurisdictional error by the Tribunal. 

8. The applicant’s submissions to the Federal Magistrates Court referred to his difficulty in obtaining evidence, criticised the Tribunal for failing to ‘try and establish why he didn’t attend the hearing’, as Federal Magistrate Raphael put it.  The applicant suggested that no inquiries had been made on this subject and that he himself could have been asked to provide further information about his case.

9. His Honour could find no sign of jurisdictional error on the part of the Tribunal.  Neither can I.  There is, in my view, no arguable case in support of his projected appeal to this Court.  It follows that the appeal would be futile and, despite the short period of delay in instituting the proceedings, it would be a mistaken exercise of discretion to permit a futile proceeding to take place in the Court.

10. The application for extension of time within which to appeal is refused.  It follows that that puts an end to proceedings in this Court.

11. The application is dismissed with costs, which I assess in the sum of $750.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:             6 December 2004

Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	2 November 2004
Date of Judgment:	2 November 2004