SZBXG v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 985

FEDERAL COURT OF AUSTRALIA

SZBXG v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 985

SZBXG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 944 OF 2004

GYLES J
20 JULY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 944 OF 2004

BETWEEN:	SZBXG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	20 JULY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application for extension of time is dismissed.

2.   The applicant is to pay the costs of the Minister.

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 944 OF 2004

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

JUDGE:	GYLES J
DATE:	20 JULY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for extension of time within which to appeal from a decision of a Federal Magistrate, who dismissed an application challenging a decision of the Refugee Review Tribunal.  That Tribunal had affirmed the decision of a delegate of the Minister, to refuse an application for a permanent protection visa.

2. The applicant was an unauthorised boat arrival, who arrived in Australia in December 1999, claiming to be a citizen of Afghanistan.  He was granted a temporary protection visa, which was subsequently cancelled.  He applied for a permanent protection visa on 28 June 2000.  That application was refused in 2003, and that is the decision of which review by the Refugee Review Tribunal was sought.  By then it was clear that the applicant was a citizen of Pakistan, not a citizen of Afghanistan as he had first claimed.

3. He, nonetheless, claimed to have a well founded fear of persecution on religious grounds.  He claimed to fear reprisals in relation to his departure from the Islamic religion and activities that he says he was involved in, including blasphemy.  The Tribunal rejected his claims, finding that he had concocted his evidence and that he was not a credible witness.

4. I will not set out in full the application to the Federal Magistrates Court.  It is not framed in terms of grounds appropriate to raise a case, but is rather a statement of grievance, which raises matters of merit.  No question of failure by the Tribunal to consider documents as such was raised. 

5. It appears from the decision of the learned Magistrate that his Honour, notwithstanding the informality of the application, considered matters put to him including material put to him orally by the applicant.  The reasons for the learned Magistrate's dismissal of the application show that he gave consideration to the questions before him in a reasoned fashion, and concluded that the decision of the Tribunal, based as it was upon credibility, was open to it, and that there was no jurisdictional error involved in that decision.

6. There are two matters upon which I have to be satisfied before granting an extension of time.  The first relates to the delay.  I would not refuse this application on that account.  The lapse of time is not great and there is no substantial prejudice.

7. The second is that there be, at least, some chance of succeeding on the appeal.  It is at this hurdle that the applicant fails.  In the first place his draft notice of appeal does not raise any proper ground of appeal.  What he has said in support of his application today underlines the fact that his complaint is as to the conclusions of the Tribunal.  He suggests that the Tribunal had no proper basis for coming to a view that he was an incredible witness and submits that, in particular, the Tribunal did not give proper consideration to documents that he tendered which supported his case.  It is clear that he has a sense of grievance about the Tribunal, in effect, taking the view that those documents were false.

8. As I endeavoured to explain briefly to the applicant during the course of argument, the question of credibility of the applicant and judgment of matters such as falsity of documents, is committed to the Tribunal and not to the Magistrate or to this Court on appeal from the Magistrate.  He sought to refer to the documents, and I indicated that it was not appropriate that they be before this court on this application. 

9. I am satisfied that there is no arguable basis put forward which would have any chance of success on appeal from this decision.  I therefore dismiss the application for an extension of time, and I order that the applicant for the extension of time pay the costs of the Minister.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated:            30 July 2004

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	K Grewal of Blake Dawson Waldron
Date of Hearing:	20 July 2004
Date of Judgment:	20 July 2004