SZDMY v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1029

FEDERAL COURT OF AUSTRALIA

SZDMY v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1029

SZDMY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1036 OF 2005

WILCOX J
14 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1036 of 2005

BETWEEN:	SZDMY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	14 JULY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for extension of time be dismissed with costs assessed at $750.

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 1036 of 2005

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

JUDGE:	WILCOX J
DATE:	14 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for extension of time to appeal to the Court against a decision of Federal Magistrate Nicholls given on 4 November 2004.  The magistrate dismissed an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’) which had been handed down on 13 November 2003.  The magistrate could find no jurisdictional error in the Tribunal's decision.  He noted that the applicant had failed to attend the Tribunal's oral hearing.

2. Last week a hearing date was fixed for the application for extension of time.  The applicant was notified of the time and place of the hearing; that is, 10.15am today.  At 8.26pm yesterday, the District Registry of the Court received a faxed letter purporting to come from the applicant in which she said this:

   ‘My matter has been set down for hearing at 10.15 am on Tuesday, 14 July 2005 before a Federal Court on Level 16, Law Courts Building, Queens Square, Sydney. 

   Unfortunately from this afternoon I did not feel good.  I am not physically not fit for appear before your honour abov ementioned hearing date tomorrow.

   In this circumstance I need around two weeks adjournment for hearing.

   Please sympathetically consider my time prayer.  If you have any query regarding this do not heisted [sic] to contact with me at my address below.’

3. The address below was an address at Queenscliff, apparently a flat.  No telephone number was given.

4. The letter was delivered to my chambers early this morning.  My associate searched the Federal Court file for a telephone number or other contact point with the applicant.  There was none in the Federal Court file.  She found a mobile phone number in the file of the Federal Magistrates Court and rang that number.  The phone call was not answered, but she was directed to a ‘missed call service’ and left her telephone number on that service.  This happened shortly after 9 o'clock this morning.  It is now 12.40pm.  Nothing has been heard from the applicant during this time.  She did not appear when the matter was called today.

5. The letter from the applicant is vague in the extreme.  It does not identify any medical problem.  It is not supported by any medical evidence.  It is interesting to note that the wording in the last paragraph replicates that contained in a letter received from another person, whose case was initially listed today but who obtained an adjournment of their application.  In that case, the application was supported by medical evidence.  Whether there has been some collusion I do not know, but I am not satisfied the present applicant has made out a case for an adjournment.

6. The application for extension of time was filed more than seven months after the date of the Federal Magistrate's decision.  I would not be justified in extending time unless I was satisfied that there was at least an arguable case of jurisdictional error.  The magistrate could find none.  I cannot find any apparent jurisdictional error in the Tribunal's reasons for decision.

7. In the circumstances, the application for extension of time should be refused.  The application for extension of time is dismissed with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:
Dated:            27 July 2005

There was no appearance for the Applicant.
Solicitor for the Respondent:	A Nesbitt of Sparke Helmore
Date of Hearing:	14 July 2005
Date of Judgment:	14 July 2005