SZAVV v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1740

FEDERAL COURT OF AUSTRALIA

SZAVV v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1740

SZAVV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1586 of 2004

TAMBERLIN J
SYDNEY
16 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1586 OF 2004

BETWEEN:	SZAVV APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	16 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time within which to file and serve a notice of appeal is dismissed.
2. The applicant pay the respondent’s costs of this application.

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	NSD 1586 OF 2004

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

JUDGE:	TAMBERLIN J
DATE:	16 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal from a judgment of a Federal Magistrate given on 6 October 2004, in which the Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”). The reasons for the Tribunal are set out in a transcript of the judgment of the Magistrate, which refers to the Tribunal’s reasons and to the two grounds for judicial review raised by the applicant on the hearing before the Magistrate.

2. The Magistrate found that there was no substance to the allegation of actual bias, and nor did he consider there was any substance to the no evidence ground.  There was a further matter concerning alleged procedural unfairness in relation go the hearing before the Tribunal, at which the applicant did not appear.  The applicant appeared before the Magistrate and, with the benefit of an interpreter, explained his position to the Magistrate.  He said that he was unable to appear at the Tribunal hearing because he had work commitments in Perth.

3. The Tribunal advised the applicant that it could not make a favourable decision on the material that was before it, and invited the applicant to attend the hearing on 28 April 2003.  The applicant had in excess of one month's notice of that hearing.  Prior to the Tribunal hearing, the applicant’s migration agent wrote to the Tribunal stating that the applicant would not attend.  The Magistrate concluded that the applicant had decided approximately three weeks before the hearing that he would not attend, and found that he had voluntarily given up his right to a hearing before the Tribunal.  For these reasons, the Magistrate found that there was no procedural unfairness.

4. When the matter came on for hearing before me today the applicant did not address the question of whether there were any errors in the decision of the Magistrate that would justify the grant of an extension of time within which to file and serve a notice of appeal.  He did refer to some failure of communication.  However, I am not persuaded that there has been any error shown in the reasons for judgment of the Magistrate.

5. The applicant requires an extension of time because his notice of appeal was filed several days out of time. If he had been able to raise any serious question as to error in the decision of the Magistrate I may have been disposed to grant an extension.  However, I am not satisfied that there is any error in law in the reasons for judgment of the Magistrate and therefore I dismiss the application for extension of time and for leave to appeal.  Any appeal is therefore incompetent. I order the applicant to pay the respondent's costs of 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 Tamberlin.

Associate:

Dated:            16 December 2004

The Applicant appeared in person with the assistance of an interpreter
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	16 December 2004
Date of Judgment:	16 December 2004