SZBJF v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1237

FEDERAL COURT OF AUSTRALIA

SZBJF v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 1237

MIGRATION – Refugee Review Tribunal – application for enlargement of time in which to file and serve a notice of appeal from Federal Magistrates Court – no issue of principle – application dismissed

SZBJF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 900 OF 2005

CONTI J
1 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 900 OF 2005

BETWEEN:	SZBJF APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	1 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application for an enlargement of time in which to file and serve a notice of appeal be dismissed.

2.   The applicant to pay the respondent’s costs fixed at $1200.

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 900 OF 2005

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

JUDGE:	CONTI J
DATE:	1 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to file and serve a notice of appeal from the judgment of Driver FM given on 10 May 2005.  His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 6 August 2003 affirming the earlier rejection, by ministerial delegate, of the applicant’s application for a protection (Class XA) visa. 

2. The application for an extension of time was originally set down for hearing on 29 July 2005.  On that occasion, the applicant read an affidavit sworn by him on 6 June 2005 which was in the following terms (read literally):

   ‘Till today I have not received the order and the judgment of my hearing.  I was waiting for that to file appeal.  I spoke to respondent solicitor last week and they said that they have received order just then only.  And they will post it to me.  I was told on my hearing day that I can file notice of appeal only when I received my order and judgment.’

   The applicant also claimed that he had not received the Federal Magistrate’s reasons for judgment until the Minister’s legal counsel handed a copy to him during the hearing on 29 July 2005. 

3. Annexed to the applicant’s affidavit was a draft notice of appeal.  No grounds were stated for the contemplated appeal, the applicant merely indicating that he would adduce grounds of appeal after receiving legal advice.  Over the Minister’s objection, I granted the applicant an adjournment so as to allow him time to consider the reasons for judgment and to obtain assistance in drafting grounds in support of his application.  The hearing was set down for 1 September 2005.

4. At the beginning of the hearing on 1 September 2005, the applicant’s pseudonym, appointed to him pursuant to s 91X of the Migration Act 1958 (Cth), and his full name, were called outside the Court however he did not appear.

5. The Minister submitted that the application should be dismissed for two reasons.  First, for the applicant’s failure to attend today’s hearing.  Second, because there are no prospects of any appeal from the judgment of Driver FM succeeding. 

6. The Court has discretion under O 52 r 15(2) to grant leave to an applicant to file a notice of appeal at any time for special reasons.  Although the expression special reasons is of broad compass (Jess v Scott (1986) 12 FCR 187), it is always necessary to have regard to prospects of the applicant succeeding in the contemplated appeal (Gallo v Dawson (No 2) (1992) 109 ALR 319).

7. In disposing of the application for review of the Tribunal’s decision, his Honour said at [6] ‘it appears to me that the [Tribunal’s] decision was a particularly careful and thorough examination of the applicant's claims. In my view, that decision is free from any jurisdictional error.’  His Honour then adopted the Minister’s submissions, which disposed of each of the purported grounds of review pleaded by the applicant.  I can see no error in his Honour’s judgment, or in his reasons for reaching it.  The Tribunal did not fail to provide the applicant with procedural fairness and I can find no error in its approach to the applicant’s claims.  The applicant’s failure to attend today’s hearing indicates that his motivation for seeking leave to initiate the contemplated appeal is a desire to delay his inevitable return to his country of origin, rather than any concern as to the reasons for his Honour’s judgment. 

8. In those circumstances I dismiss the application for an enlargement of time in which to file and serve a notice of appeal and order that the applicant pay the Minister’s costs, fixed at $1200.

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

Associate:

Dated:             2 September 2005

The applicant did not appear
Solicitor for the Respondent:	Blake Dawson Waldron
Dates of Hearing:	29 July 2005, 1 September 2005
Date of Judgment:	1 September 2005