SZAVG v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1447

FEDERAL COURT OF AUSTRALIA

SZAVG v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1447

SZAVG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1709 of 2003

STONE J
9 DECEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1709 OF 2003

BETWEEN:	SZAVG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	9 DECEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1The application for an extension of time to file and serve a notice of appeal be treated as an application for leave to appeal and an application of an extension of time to apply for leave to appeal.

2Leave to appeal and the application for an extension of time to apply for leave to appeal be refused.

3The applicant is to pay the respondent’s costs of the application in the amount of $1,500.

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 1709 OF 2003

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

JUDGE:	STONE J
DATE:	9 DECEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 9 May 2003 the Refugee Review Tribunal (‘the Tribunal’) confirmed the decision of a delegate of the respondent refusing to grant the applicant a protection visa. The decision was made only on the documentary material before the Tribunal. The Tribunal notes that it invited the applicant to give oral evidence and present arguments at a hearing on 10 April 2003 but that the applicant declined the opportunity. On 24 June 2003 the applicant filed an application for judicial review with the Federal Magistrates Court of Australia. The matter was listed for directions on 14 August 2003 but there was no appearance by the applicant. Similarly there was no appearance at a further directions hearing on 20 August 2003. On the application of the respondent the application was dismissed by a Registrar pursuant to O 10.01(2)(b) of the Federal Magistrates Court Rules. 

2. The applicant applied to have the Registrar’s orders made in his absence varied or set aside under O 16.05(2) of the Federal Magistrates Court Rules.  The application was ultimately scheduled for hearing before Federal Magistrate Driver on 9 October 2003.  The applicant did not attend the Court at that time.  At the hearing before me today he said that he forgot to do so.  Federal Magistrate Driver ordered that the motion be dismissed.  I am satisfied from the affidavit evidence of Rebecca Kate Roberts, a solicitor employed by Sparke Helmore, the solicitors for the respondent, that at all times the applicant was properly served and informed of the dates for the various hearings and I note that he does not contend otherwise.  On 31 October 2003 the applicant filed an application for an extension of time to file and serve a notice of appeal from the decision of Federal Magistrate Driver. 

3. In the circumstances I am prepared to treat the application presently before me as an application for an extension of time to seek leave and an application for leave to appeal. The orders and judgment of the Federal Magistrate are interlocutory and therefore leave to appeal is required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth). Such an application must be made within 7 days from the pronouncement of the interlocutory judgment from which leave to appeal is sought; O 52 r 10(2)(b). The application for leave to appeal was made outside that period and therefore the applicant needs not only leave to appeal but also an extension of time within which to make that application. Both the application for an extension of time and the application for leave to appeal may be heard by a single judge; s 25(2)(a) and (b) of the Federal Court of Australia Act 1976 (Cth).

4. The Court has a discretion to extend the time within which an application for leave must be filed and served.  Relevant to that discretion is the likelihood of relief being granted and the reasons for the delay.  Order 52 r 15(2) refers to ‘special reasons’ as being the basis of the exercise of discretion.  In my view the applicant has not established any such special reasons.  He offered no reason for his delay apart from some vague and unsupported claims that he received the letter notifying him of the Federal Magistrate’s decision ‘late’.  More importantly, he has not identified any error in the Tribunal’s reasons on which he could conceivably ground an appeal.  His criticism of the Tribunal’s reasons goes to the merits of his claim in that he disagrees with the relative weight that the Tribunal attached to his claims and to the independent country information that was inconsistent with those claims.  This Court has no jurisdiction to enter into this debate.  The application must be dismissed with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone .

Associate:

Dated:            9 December 2003

Counsel for the Applicant:	The applicant appeared for himself.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 December 2003
Date of Judgment:	9 December 2003