SZCAH v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 513

FEDERAL COURT OF AUSTRALIA

SZCAH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 513

SZCAH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 390 of 2006

ALLSOP J
4 MAY 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 390 of 2006

BETWEEN:	SZCAH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	4 MAY 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to extend the time in which to file and serve a notice of appeal is dismissed.

2.The applicant pay the respondent's 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 390 of 2006

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

JUDGE:	ALLSOP J
DATE:	4 MAY 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal.

2. The application was filed on 27 February 2006.  The appeal which is sought to be enlivened by the application is against orders made by the Federal Magistrates Court on 30 January 2006.  Time for filing the notice of appeal expired on 21 February 2006.  Although the applicant was only seven days out of time, in order that I should properly exercise the discretion to grant the extension of time, I need to be satisfied that there is an arguable ground of appeal.  I am not so satisfied.

3. The applicant has filed no draft notice of appeal with any coherent ground of jurisdictional error and no relevant submissions have been filed that might disclose what ground is relied upon.

4. The applicant is a citizen of India.  He arrived in Australia in 2003 and lodged a claim for a protection visa.  The grounds of the claim for protection were summarised in paragraph 3 of the Federal Magistrate's reasons:

   In his application for review the applicant said that his fear of convention based persecution was well founded. He feared that there was a real chance that he would face danger at the hands of some fanatical religious groups in India who oppose inter-religious marriage. He further submitted that the Government of India was powerless to protect people who face persecution at the hands of those people who are opposed to marriage between people of different religions. He also submitted that relocation to an urban area would not change his position of being killed or harmed by those people who would seek to harm him, and relocation was not a reasonable option in the circumstances.

5. The Refugee Review Tribunal (the “Tribunal”) invited the applicant to a hearing which he attended and gave oral evidence.  The nature of what occurred at the hearing is set out on pages 5, 6 and 7 of the Refugee Review Tribunal's reasons.  The Tribunal, in its findings and reasons at pages 11, 12 and 13, did not accept the applicant's claims in terms which do not call for detailed discussion here but which do not, on their face, reveal any failure to attend to the correct question, any failure to give the applicant a hearing, any failure to follow necessary and mandatory provisions of the Migration Act 1958, in particular including s 424A.

6. Based on the matters set out at pages 11, 12 and 13 of its reasons, the Tribunal concluded that it could not be satisfied of the relevant criterion that Australia had protection obligations to the applicant on the basis of a well-founded fear of persecution.  The Federal Magistrate dealt with the matters put before him and was unable to identify any ground of jurisdictional error.

7. In circumstances where no specific error is identified in the notice of appeal, I do not propose in a leave application to traverse every paragraph of the Federal Magistrate's reasons to identify why I do not perceive any apparent error.

8. Turning finally to the draft notice of appeal, the first ground asserted that the decision of the Tribunal involved a jurisdictional error and the Federal Magistrate failed to identify a s 424A administrative error contained in the decision.  In this respect the Federal Magistrate dealt with s 424A in paragraph 13 of his reasons dealing with country information in a way that is uncontroversial.

9. The second ground was an assertion that the Court ignored relevant facts and made erroneous findings.  The ground is devoid of content and I do not see, upon my reading of the reasons, any ground for suggesting that relevant facts and considerations were ignored by the Court.

10. The third ground was that the applicant says he was denied the opportunity by the Court to give evidence to support his claims of reviewable error in the decision for the Refugee Review Tribunal.  No material has been put forward upon which it could be even suggested that the Federal Magistrates Court denied a fair hearing to the applicant.

11. In these circumstances I see no utility at all in granting the extension of time, because I do not see any basis upon which it can be argued that the court below was in error.

12. In these circumstances I should not exercise the discretion to extend time, even if it be the case, as it is, that the applicant was only seven days out of time.

13. For those reasons the application for leave to extend the time in which to file and serve a notice of appeal is dismissed and I order that the applicant pay the respondent's costs.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             8 May 2006

The applicant appeared in person assisted by an interpreter.
Counsel for the Respondent:	Mr A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 May 2006
Date of Judgment:	4 May 2006