SZDRP v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 811

FEDERAL COURT OF AUSTRALIA

SZDRP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 811

Federal Magistrates Court Rules rule 13.03(2)(b), 13.03A(c), 16.05(2)

SZDRP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 582 OF 2005

HELY J
7 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 582 OF 2005

BETWEEN:	SZDRP APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	7 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal and an extension of time within which to file and serve a notice of appeal be dismissed with 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 582 OF 2005

BETWEEN:	SZDRP APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	7 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 29 April 2003 the Refugee Review Tribunal (‘the RRT’) handed down its decision affirming the decision of the Minister’s delegate not to grant a protection visa to the applicant.  In its decision the RRT noted that the applicant had not attended the hearing which it had appointed and that it had no information (apart from general assertions made by the applicant) which the RRT could analyse and use to come to a conclusion favourable to the applicant.  The RRT was thus not satisfied that the applicant was a refugee and dismissed his claim.

2. On 27 May 2004 the applicant applied to the Federal Magistrates Court for judicial review of that decision.  The matter was listed for directions on 3 September 2004 when the applicant failed to appear.  The matter was listed for further directions on 17 September 2004 and it was ordered that the applicant should file and serve an amended application giving complete particulars of each ground of review being relied upon by 29 November 2004.

3. On 1 December 2004 the applicant served, but did not file, an amended application upon the respondent which contained the following grounds:

   ‘A.  I am afraid of being tortured, harassed and even get killed just because I am a member of an Indian community.

   B.  I will be harmed by the indigenous Fijians.

   C.  As most of the positions are filled by the indigenous Fijians it is almost impossible to report Fijian aggression to the indigenous Fijian authorities.’

4. On 10 January 2005 the respondent’s solicitors wrote to the applicant advising him that whilst this amended application asserted a breach of the rules of natural justice, it did not provide any proper or meaningful particulars of that ground and that a non-compliance hearing was fixed for 11.15 am on 1 March 2005. There was no appearance by the applicant at the non-compliance hearing on 1 March 2005 before Federal Magistrate Lloyd-Jones and his Honour dismissed the application pursuant to rule 13.03(2)(b) of the Federal Magistrates Court Rules due to the failure on the part of the applicant to comply with the orders of the Court of 17 September 2004 and pursuant to rule 13.03A(c) by reason of the applicant’s failure to appear at the non-compliance hearing, there being no explanation proffered to the Federal Magistrate for his absence.

5. On 15 April 2005 application was made to this Court for leave to appeal and for an extension of time to file and serve a notice of appeal.  It is clear that the decision of the Federal Magistrate was interlocutory in character hence leave to appeal is required which must be sought within 21 days of the pronouncement of the judgment in question or such later date as is fixed by the Court.  The application was made outside that period.

6. A factor which is material to the question of whether an extension of time should be granted is whether an appeal would have any realistic prospect of success if time were extended. It is not for this Court to exercise the jurisdiction of the Federal Magistrates Court under rule 16.05(2) of the Federal Magistrates Court Rules, thus the applicant, in order to secure an extension of time and leave to appeal, needs to persuade me that there is an arguable case that the Federal Magistrate wrongly exercised his discretion to dismiss the proceedings on the grounds which he did.

7. Nothing has been put before me which could conceivably show that the Federal Magistrate erred in the exercise of his discretion.  It is clear that the applicant did not comply with the order of 17 September 2004 and although he was aware of the non-compliance hearing he neither attended nor sought an adjournment of the hearing nor proffered any explanation to the Federal Magistrate for his failure to appear.  There is nothing in the materials which I have read which suggests that there was any jurisdictional error on the part of the RRT, hence the Federal Magistrate did not commit any error in the exercise of his discretion in deciding as he did to summarily dismiss the proceedings.

8. The application for leave to appeal from that decision and an extension of time within which to file and serve a notice of appeal is therefore dismissed with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             20 June 2005

The applicant appeared in person
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	7 June 2005
Date of Judgment:	7 June 2005