SZBGX v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1757

FEDERAL COURT OF AUSTRALIA

SZBGX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1757

SZBGX v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N943 OF 2004

EMMETT J
3 AUGUST 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N943 OF 2004

BETWEEN:	SZBGX APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	3 AUGUST 2004
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

(1)The notice of motion filed on 16 June 2004 be dismissed.

(2)       The applicant pay the respondent’s costs.

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	N943 OF 2004

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

JUDGE:	EMMETT J
DATE:	3 AUGUST 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant claims to be a citizen of India.  He arrived in Australia on 31 March 2001 and on 19 April 2001 lodged an application for a Protection Class XA Visa under the Migration Act 1958 (Cth) (‘the Act’). On 4 May 2001 a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) refused to grant a protection visa. On 18 May 2001 the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of that decision.

2. On 31 May 2002 the Tribunal affirmed the decision not to grant a protection visa. On 20 August 2003 the applicant commenced a proceeding in the Federal Magistrates Court seeking relief pursuant to s 39B of the Judiciary Act 1903 (Cth). On 20 May 2004 Federal Magistrate Barnes ordered that the application be dismissed and that the applicant pay the Minister’s cost set in the sum of $4,000. Her Honour gave detailed reasons for those orders.

3. On 16 June the applicant applied to this Court for an extension of time in which to file and serve notice of appeal from the orders of Federal Magistrate Barnes.  That application is now listed for hearing before me as Duty Judge.  When the matter was called there was no appearance for the applicant.  Under the Federal Court Rules a notice of appeal should have been filed within 21 days after the date in which the judgment appealed from was pronounced.  Any notice of appeal was therefore required to be filed and served no later than 10 June 2004.

4. The applicant’s basis for claiming extension of time is that he had been awaiting a transcription of the reasons given by Federal Magistrate Barnes for her orders.  He was, however, present in Court when those reasons were delivered ex tempore.  The applicant claims that he did not know until the day before he filed his application that he need not wait for a transcription of the reasons.  Under O 52 r 15(2) it is necessary for an applicant to establish special reasons to justify the departure from the time period prescribed in the Federal Court Rules.

5. The applicant was present in Court and knew the reasons why the decision of the Federal Magistrate was made.  There is no suggestion that the applicant was not aware that there were time limits for lodging an appeal.  I am not persuaded on the material before me that special reasons have been demonstrated for extending the time within which an appeal should be brought. 

6. In his draft notice of appeal the applicant’s grounds are stated as follows. 

   ‘The Federal Magistrates Court in her Honour’s reasons in [her] [H]onour’s judgment delivered on 20 May 2004 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act 1903.’

7. No other grounds are specified.  In his original application to the Federal Magistrates Court the grounds specified were as follows.

   ‘(1)The tribunal did not take into account the court case against me in India of a convention based reason.  I have two non bail W/A.

   (2)The tribunal made his decision in bad faith.

   (3)The tribunal deprived me of the natural justice.

   (4)The tribunal denied the evidentiary proof of my claim.

   (5)The tribunal’s decision did not reflect the material facts of my claim.

   (6)The tribunal has given a decision, which was preset in the back of it’s mind.

   (7)The tribunal mixed up many facts with this decision which affected the decision.

   (8)The tribunal concentrated in particular fact while ignored many other facts in this condition.

   (9)The tribunal make up his mind without any inquiry regarding my claim and he did not believe my genuine convention based refugee claim.

   (10)I will provide more details of grounds later.’

8. Federal Magistrate Barnes dealt with those grounds with some care and consideration.  It seems likely that much of her Honour’s reasons were not arrived at with any assistance from the applicant.  On the face of it, however, her Honour appears to have dealt with all of the so-called grounds set out in the original application.  It is not apparent from a reading of her Honour’s reasons that there was any error in them.  Even if special reasons were established there would be no utility in granting leave because there is no prospect that the appeal would succeed.  Accordingly I propose to order that the application be dismissed with costs.

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

Associate:

Dated:             12 January 2005

The Applicant did not appear.
Solicitor for the Respondent:	Ms S. Goodman, Blake Dawson Waldron
Date of Hearing:	3 August 2004
Date of Judgment:	3 August 2004