SZBUV v Minister for Immigration and Citizenship

[2007] FCA 213

FEDERAL COURT OF AUSTRALIA

SZBUV v Minister for Immigration and Citizenship [2007] FCA 213

CORRIGENDUM

SZBUV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1730 OF 2006

MOORE J
27 FEBRUARY 2007 (CORRIGENDUM DATED 22 MARCH 2007)
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1730 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBUV
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE:	27 FEBRUARY 2007 (CORRIGENDUM DATED 22 MARCH 2007)
PLACE:	SYDNEY

CORRIGENDUM

1. In the Reasons for Judgment of the Honourable Justice Moore of 27 February 2007, the matter number should be deleted in all instances and substituted with "NSD 1730 of 2006".

I certify that the preceding one (1) paragraph is a true copy of the Corrigendum to the Reasons for Judgment in this matter of the Honourable Justice Moore.

Associate:

Dated:        22 March 2007

FEDERAL COURT OF AUSTRALIA

SZBUV v Minister for Immigration and Citizenship [2007] FCA 213

SZBUV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 1730 OF 2007

MOORE J
27 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1730 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBUV
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE OF ORDER:	27 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for adjournment be dismissed.

2.The application for leave to file and serve out of time be dismissed pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976.

3.The applicant pay the first respondent's costs fixed in the sum of $750.

4.The name of the first respondent be amended to the 'Minister for Immigration and Citizenship'

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 1730 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZBUV
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE:	27 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to appeal against a judgment of a Federal Magistrate given on 10 November 2005: see SZBUV v Minister for Immigration & Anor [2005] FMCA 1649. The applicant has not appeared. She has written to the Court informing the Court that she is not able to attend and requesting that the hearing be postponed for a few days. She states that she is suffering from high fever and unbearable toothache and is "facing difficulties in talking". Annexed to that letter is a medical certificate that simply states she is suffering from a tooth abscess, and the words "lower wisdom" appear. The certificate certifies that she would not be fit for duty between 26 February and 2 March 2007. Having regard to the paucity of the information both in the letter and in the certificate, I am not satisfied that the applicant would not have been able to attend the hearing today even if to do so caused her some personal discomfort. Accordingly, if the letter is taken to be an application for an adjournment, that application is refused.

2. The applicant has elected not to appear and to anticipate that by the sending of the letter and the certificate the matter would be adjourned. In those circumstances, I propose to dismiss the matter having regard to the non appearance of the applicant, pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth). I should add however that the application for an extension of time appears doomed to fail. Firstly, there is no substantial explanation concerning the considerable delay between the judgment of the Federal Magistrate on 10 November 2005 and the application for an extension of time filed in this Court on 8 September 2006. Secondly, the decision of the Federal Magistrate revealed that the application to the Refugee Review Tribunal in respect of which the applicant sought judicial review in the Federal Magistrates Court was made in a context where the applicant never asserted she was a refugee, and that the application to the Tribunal had been made by a migration agent in circumstances in which the migration agent was plainly exceeding his authority to act on behalf of the applicant.

3. I dismiss the application and order the applicant to pay the Minister’s costs.  I order that those costs be fixed in the amount of $750.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        2 March 2007

Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	27 February 2007
Date of Judgment:	27 February 2007