SZBKE v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1615

FEDERAL COURT OF AUSTRALIA

SZBKE v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1615

MIGRATION – application for extension of time to file and serve notice of appeal – no point of law or principle

SZBKE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1877 OF 2005

TAMBERLIN J
SYDNEY
3 NOVEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1877 OF 2005

BETWEEN:	SZBKE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	3 NOVEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application for an extension of time to file and serve a notice of appeal is dismissed with 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	NSD 1877 OF 2005

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

JUDGE:	TAMBERLIN J
DATE:	3 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in relation to an appeal from a decision of Federal Magistrate Driver delivered on 25 August 2005.  The Federal Magistrate rejected an application for review of a decision of the Refugee Review Tribunal handed down on 6 August 2003 affirming a decision of a delegate of the Minister not to grant a protection visa to the applicant. 

2. In the reasons for decision, the Federal Magistrate noted that, at the hearing of the matter on 25 July 2005, he ordered the applicant to file and serve any submissions in reply by 8 August 2005 and that she had not taken up that opportunity. 

3. The applicant has placed before the Court an affidavit sworn by her on 4 October 2005, which states that on 12 September 2005 she asked her friend Mr Singh to fax a notice of appeal to the Federal Court Registry.  Attachment A to that affidavit is a copy of what is stamped as a draft notice of appeal.  The draft notice of appeal was received by the Federal Court by facsimile on 12 September 2005.  The applicant says in the affidavit that she did not send a fee waiver application with the notice of appeal because she had previously been granted a fee waiver for the matter she is appealing against. 

4. The affidavit also asserts that the Federal Magistrate had failed to consider the applicant’s submissions in response to the Respondent’s written submissions.  From the records, it does not appear that these submissions were ever received by the Federal Magistrate.  There is no indication in the Federal Magistrates Court file of the receipt of these submissions and indeed the Federal Magistrate expressly states in the reasons for decision that the submissions were not received by 8 August, and presumably by 25 August, when the reasons for decision were delivered.   The applicant said that she had asked her friend Mr Singh to fax her submissions to the New South Wales Registry before the due date and that Mr Singh had confirmed with her that this had been done on time.  The records of this Court and of the Federal Magistrates Court do not support the assertions made in the affidavit and it appears that the applicant’s submissions in reply were never received by the Federal Magistrates Court.

5. In these circumstances, I consider that an application for an extension of time is required.  I note that the respondents do not claim any prejudice as a result of a late filing but rather their case is that there is no substance in the grounds of appeal, taking into account both the applicant’s outline of submissions and the submissions in reply which do not appear to have been received by the Federal Magistrate. 

6. When the matter came on for hearing before me this morning, the applicant appeared in person with the assistance of an interpreter.  When invited to express her reasons for stating that there had been jurisdictional error by the Federal Magistrate, the applicant responded by saying that she needed further time to seek legal advice and did not make any submissions.  No satisfactory explanation has been given as to why she has not previously sought legal advice and nor has she demonstrated any reasons why the Court should set aside the decision or grant the appeal if an extension of time were allowed on the basis of the draft notice of appeal.

7. I am satisfied that the reasons of the Federal Magistrate below do not disclose any error of law or principle and that no error has been shown in the decision of the Tribunal.  Nor has any reasonable argument been articulated in the submissions which would warrant any interference with the decision of the Federal Magistrate. 

8. In these circumstances, I consider that to grant an extension of time would be a futile exercise and, accordingly, I dismiss the application for an extension of time 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 Tamberlin.

Associate:

Dated:            9 November 2005

The Applicant: appeared in person with the assistance of an interpreter.
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 November 2005
Date of Judgment:	3 November 2005