SZDSN v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 519

FEDERAL COURT OF AUSTRALIA

SZDSN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 519

SZDSN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 456 OF 2005

MADGWICK J
27 APRIL 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 456 OF 2005

BETWEEN:	SZDSN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	27 APRIL 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for an extension of time to file and serve a notice to appeal be dismissed.

2.        The applicant pay the respondent’s costs assessed in the amount of $800.00.

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 456 OF 2005

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

JUDGE:	MADGWICK J
DATE:	27 APRIL 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

MADGWICK J:

1. This is an application for an extension of time to file and serve a notice of appeal from a judgment of Federal Magistrate Lloyd Jones given on 24 February 2005, whereby his Honour dismissed an application to the Federal Magistrates Court for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) which was adverse to the applicant.  The applicant did not appear at the hearing of his case before the learned Federal Magistrate.  The hearing proceeded in the absence of the applicant. 

2. The respondent first raised the question whether, in these circumstances, a judgment so given could be undone, if good reason was shown for the non-appearance of the applicant.  In my view, the judgment is final, notwithstanding that it can be so upset.  The position is the same as for any other judgment which can be set aside for fraud, for example.  I deal with the matter on the basis that the appeal was final and that no leave to appeal is required. 

3. Hence, what is at issue is whether the applicant should be put out of Court on an appeal as of right through being about a week late in filing his notice of appeal.  He has given some explanation of this.  He says that he arrived at the Registry of this Court on the last day for filing his appeal but was sent away because the documents were not filled out correctly and, when they were, a few days later, he brought them back.

4. Normally, the Court would be quick to excuse a short delay of that kind when, in theory, so much turns on it.  However, the respondent submits that it will be futile to extend time because the decision of the learned Federal Magistrate is manifestly correct and not attended with sufficient doubt to warrant the matter further occupying the time and expense of the respondent or the time of the Court. 

5. The unrepresented applicant, not surprisingly, is unable to suggest any jurisdictional error on the part of the Tribunal.  He refers merely to his disagreement with the findings made by the Tribunal and to aspects of the decision which, in a factual sense, he disputes.

6. The application to the Federal Magistrates Court asserted among other things:

   ‘The Tribunal had no evidence before it to determine whether I was a political activist and therefore come to wrong conclusion that I will not be subjected to persecution if I return to Ukraine in the future.’

7. It appears, however, that the Tribunal Member simply, for reasons given, did not believe that the applicant had been beaten or detained for political reasons as he suggested or that there was any difficulty for members of opposition parties in the Ukraine, the applicant’s country of nationality.  I am unable to see that there is any reasonable argument that the Tribunal Member erred or any reasonable argument that the judgment sought to be appealed from was wrong. 

8. Accordingly, and unusually, it would be futile to extend time and I decline to do it. 

9. The applicant’s application will be dismissed with costs.

10. The applicant is to pay the Minister’s costs assessed in the sum of $800.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            4 May 2005

Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	27 April 2005
Date of Judgment:	27 April 2005