SZCTL v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1752

FEDERAL COURT OF AUSTRALIA

SZCTL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1752

SZCTL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1874 OF 2005

MOORE J
24 NOVEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1874 OF 2005

BETWEEN:	SZCTL APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The time for filing an application for leave to appeal from the order of the Federal Magistrate of 11 January 2005 be extended to 5 October 2005.

2.The application for leave to appeal be dismissed.

3.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 1874 OF 2005

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

JUDGE:	MOORE J
DATE:	24 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to file an application for leave to appeal from orders of a Federal Magistrate and, if time is extended, whether leave should be given.  I am prepared to assume, having regard to what I have been told, that the applicant first became aware of the orders of the Federal Magistrate when he was arrested and detained in September 2005.  That occurred against a background where the Federal Magistrate had dismissed in Chambers his application for judicial review on 11 January 2005.  Accordingly there is an explanation for the delay, though it is only barely a satisfactory explanation. 

2. The decision of the Tribunal was based on a lack of satisfaction that the applicant's story or account was to be believed.  The applicant's account had been that he was a Falun Gong practitioner who had taken up practising Falun Gong in 1998.  However, his account of what occurred to him after having taken up that practice beared striking similarity to an account of another person found on the internet.  The Tribunal was, and was entitled to be, quite sceptical about the veracity of the applicant's claims.  It appears from the Court Book that the Tribunal's consideration of the applicant's case and the attendant procedural steps that led to the determination were regular.  It does not appear to me that the Tribunal's decision was attended by jurisdictional error.

3. While the procedure adopted by the Federal Magistrate in dismissing the application in Chambers are attended by some doubt, the ultimate question is whether the applicant is likely to be able to demonstrate, in any appeal, that the basal decision of the Tribunal was attended by jurisdictional error.  It is not apparent to me that he will be able to do so.  Accordingly, any appeal or leave given would be almost certainly doomed to failure.  I propose to extend time for filing of the application for leave to appeal and dismiss the application for leave with costs. 

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:            23 December 2005

The Applicant appeared in person.
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	24 November 2005
Date of Judgment:	24 November 2005