SZBZE v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1680

FEDERAL COURT OF AUSTRALIA

SZBZE v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1680

MIGRATION – application for leave to appeal out of time – no issue of principle – application refused

Federal Court Rules O 52 r 5

SZBZE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1326 OF 2004

CONTI J
3 DECEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1326 OF 2004

BETWEEN:	SZBZE APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	3 DECEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.       The application for leave to appeal be dismissed.

2.       The applicant pay the respondent’s costs of the application in the amount of $1,200.00.

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	N 1326 OF 2004

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

JUDGE:	CONTI J
DATE:	3 DECEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. These proceedings were commenced by a notice of appeal filed 10 September 2004 against the decision of Raphael FM, made and given on 23 August 2004, which dismissed the applicant’s application for review of the decision of the Refugee Review Tribunal handed down on 2 October 2003 (see SZBZE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 542).

2. Raphael FM dismissed the proceedings pursuant to Part 13 Rule 13.03(2)(b) and Part 13 Rule 13.10(a) of the Federal Magistrates Court Rules 2001 (the ‘FMCRs’).

3. Rule 13.03 of the FMCRs states relevantly:

   ‘(1)This rule applies if a party fails to take a step required by these Rules or to comply with an order of the Court.

   (2)     Subject to any other order or transfer the Court may, on the          application of another party in the proceeding or of its own motion,      make an order:

   …

   (b)to end the proceeding or dismiss a response.’

4. Rule 13.10 of the FMCRs relevantly states:

   ‘The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that:

   (a)no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or…’

5. On 16 September 2004 the respondent filed an objection to the jurisdiction of this Court to hear this appeal, on the grounds that the judgment of Raphael FM was interlocutory in nature, and further that contrary to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicant had not sought, nor been granted, leave to appeal, and further again that contrary to O 52 r 10(2)(b) of the Federal Court Rules the applicant had not filed and served a notice of motion by way of application for leave to appeal within seven days of the pronouncement of the interlocutory judgment of Raphael FM, nor had he sought further time to do so.

6. On 13 October 2004 the applicant filed an application for leave to appeal from the judgment of Raphael FM, and for an order that compliance with O 52 r 5(2) be dispensed with. It appears that the application was not served on the respondent, who was not aware of it until the hearing of the appeal.

7. The respondent Minister no longer presses her claim based on O 52 r 10(b)(2) of the Rules, relying instead on O 52 r 5(2)(a) of the Rules, which provides that an application for leave to appeal from a judgment must be filed within 21 days after judgment was pronounced, in this case by 13 September 2004. 

8. The application is supported by an undated affidavit of the applicant which reads literally as follows:

   ‘1.I am a genuine refugee applicant. After [the Tribunal] decision I lodged application for judicial review before the Federal Magistrates Court of Australia, at Sydney.

   2.At the direction hearing Registrar Kavallaris made a “short minutes of orders”. The orders No. 2 mention that the “applicant file and serve any additional evidence and a fully particularised amended application to be relied on by 4 July 2004.

   3.I filed Amended application by fax the Registry received the application on 5/07/04.

   4.        After that Minister Solicitor filed affidavit for dismissal.

   5.I am a lay man I don’t know the legal procedure and I don’t understand English language.

   6.Because of my lac of knowledge I did not do the proper application.

   7.My kind request please give me an opportunity to argue my case.’

9. At the hearing, I invited the applicant to provide any further reasons which he might have in mind by way of support for his application. The applicant stated in response:

   ‘Firstly, there was some translation problems, and the other interpreters didn’t interpret properly. Secondly, my case was expedited and dismissed very quickly. The other interpreters have not interpreted properly as you translate now.
   …
   Firstly, when my case was heard, I did not understand properly. There was another interpreter, and I wanted to put forward some more evidence.
   …
   The interpreter didn’t explain in such a manner for me to understand. All the evidence that I have now is core evidence.
   …
   [The new evidence is that my] daughter was threatened, and subsequently she became upset and ill, and was ultimately hospitalised – definite truth. A lot of expenses were incurred because she was admitted in a hospital in Chennai.
   …
   A doctor by the name of Nabil was treating her.’

10. In my opinion, the applicant has not advanced any viable reasons why the appeal should be permitted to proceed.  Moreover there are no exceptional circumstances, which have been identified to me, which would justify an order to the effect of allowing the applicant to file and serve a notice of appeal out of time.

11. The application for leave to appeal must be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             20 December 2004

Applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 December 2004
Date of Judgment:	3 December 2004