SZEFG v Minister for Immigration and Multicultural &

[2005] FCA 728

FEDERAL COURT OF AUSTRALIA

SZEFG v Minister for Immigration & Multicultural &
Indigenous Affairs [2005] FCA 728

SZEFG v MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS

NSD 671 of 2005

LINDGREN J
25 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 671 OF 2005

BETWEEN:	SZEFG APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	25 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs

3.        The costs referred to in order 2 be fixed in the sum of $1,000.

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 671 OF 2005

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

JUDGE:	LINDGREN
DATE:	25 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks an extension of time in which to file and serve a notice of appeal from the judgment of the Federal Magistrates Court of Australia (‘FMCA’).

2. The judgment of Nicholls FM was delivered on 7 March 2005.  The 21 day period allowed for the filing and service of a notice of appeal is set out in Order 52 r 15 of the Federal Court Rules.  That period expired on 28 March 2005.  The application for the extension of time was filed on 2 May 2005 – 35 days late.  The Court or a judge may ‘for special reasons’, at any time give leave to file and serve a notice of appeal: O 52 r 15(2).  Order 52 r 15(6) provides that:

   ‘An application for an extension of time must be accompanied by an affidavit showing the nature of the case, the questions involved, and the reason why leave should be given.’

3. The present application was accompanied by an affidavit of the applicant.  The applicant stated in that affidavit that he could not appeal within the 21 day period because he did not receive a copy of the judgment until 20 days after 7 March.  Indeed, he stated that he had to call the FMCA requesting a copy of the judgment.

4. In the same affidavit the applicant stated that upon receiving the judgment (apparently on 27 March) he took legal advice;  that he would be represented by a solicitor on the hearing of the appeal; that he had only one day in which to file his notice of appeal; and that ‘despite several attempts to complete on time’, he could not do so.

5. It is still a mystery why the applicant is not legally represented today, having regard to the fact that he consulted a solicitor as long ago as 27 or 28 March.

6. The applicant has applied for an adjournment of his application.  He wrote to the Court yesterday stating that he was seeking an extension of time so that he could take legal advice and be represented by a solicitor on the next occasion, and file a written submission.

7. In yesterday’s letter the applicant said that he had just received ‘this letter two days ago’, and that this did not allow him sufficient time in which to prepare his submission.  The expression ‘this letter’ apparently referred to a letter dated 17 May 2005 which the Court Registry sent to the applicant at the address which he gave as his address for service on his application for the extension of time.  Yesterday’s letter came from the same address.  That is to say, the address for service which the applicant gave on the application by which he commenced this proceeding was the address to which the Court gave notice of today’s hearing date by the Court’s letter dated 17 May, and is the address from which the applicant wrote yesterday’s letter.  It is difficult to accept that the Court’s letter was not received by the applicant earlier than 22 May.

8. Be this as it may, all that the applicant has said this afternoon is that he has spoken to a solicitor who is a family friend, Mr Vijay Kumar of Fairfield, who is employed by a firm called ‘City Solicitors’.  I note that the New South Wales Law Almanac 2005 records the name of one solicitor called ‘Vijay Kumar’, but the firm name and address are given as ‘Gateway Legal Service’ of 77 Campbell Avenue, Bradbury.

9. There is no letter or other document from Mr Kumar.  The applicant states that he was not able to obtain legal advice earlier for lack of funds and that he has now been supplied with funds by friends and relatives.  Again, I do not find this convincing.  I do not mean to suggest that I think that the applicant is a wealthy person.  I mean to suggest that since the FMCA decision was given on 7 March, the applicant has had some two and a half months in which to obtain legal advice and representation, and it is not convincing that this family friend, who is apparently a qualified solicitor, could not come to the applicant's aid by now, yet would be able to do so if given a further month.

10. Another reason why the application for the adjournment should be refused is that there is a finding by the Tribunal that the applicant does not fear Convention-based persecution in Fiji.  This is not simply a finding that any fear of persecution in that country is not well-founded but is a finding that the fear does not exist.  The Member referred to the fact that since the coup in Fiji in mid-May 2000, the applicant has visited Australia on 25 October 2001 for about six weeks, apparently then returning to Fiji, and on 8 March 2002, apparently for about four weeks, after which he returned again to Fiji.  His most recent arrival in Australia was on 12 October 2002.  The Member stated that the applicant's voluntary return to Fiji on two occasions satisfied him that the applicant did not fear Convention-based persecution there.  Rather, the Member stated that:

    ‘The applicant, having obtained a redundancy package from his former employer in 2001, came to Australia with his wife and children (on 12 October 2002) primarily because Australia offered better opportunities for education and for work for his children.’

11. Indeed, in the course of the application for the adjournment this afternoon, the applicant referred to the fact that he had been urged to come to Australia to live for just such reasons, following the coup of 1987, and had not done so, but that following the coup of 2000 conditions in Fiji worsened.

12. The application for the adjournment is refused. 

13. I invited the applicant to address the merits of the appeal.  The draft notice of appeal sets out the following grounds:

    1.The Judge has been unreasonable and failed to take into account the practical reality of the situation.

    2.There is an error of law – the Judge has failed to consider the circumstances of an applicant.

    3.There is a miscarriage of justice in that the applicant is not given an opportunity to submit the amended order of application.

    4.The applicant was not given an opportunity to express his view at the time of hearing and even so not allowing to adjourn the case.

    5.The Honourable judge failed to consider the tribunal adverse finding.  The Tribunal has made finding without much evidence and there is no genuine attempt to restore peace and prosperity in the region.

    6.The Honourable judge never took consideration to the applicant review of decisions and made decision based on responded line of submission.

    7.There is a clear denial of justice.’

14. I tried to explain to the applicant that the role of this court is not one of re-hearing an application for a protection visa on its merits.  The applicant said that what his complaint really amounts to is that the FMCA did not grant him an adjournment.  His application for an adjournment before the FMCA is addressed in considerable detail by Nicholls FM at [4]-[7] of his Honour's reasons for judgment.  I need not repeat the grounds, although it is notable that again the applicant urged that he was seeking advice from a lawyer "friend of a friend".  The refusal of the adjournment for the reasons given by Nicholls FM was plainly within a proper exercise of his Honour’s discretion.

15. There is no jurisdictional error obvious in the Tribunal's reasons for decision and to my mind it is plain that an appeal would fail.  The applicant is really seeking a fresh hearing of his application for a protection visa on its merits. 

16. The application for the extension of time should be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated:             10 June 2005

Counsel for the Applicant:	The applicant appeared in person.
Solicitor for the Respondent:	Mr Z Chami of Clayton Utz
Date of Hearing:	25 May 2005
Date of Judgment:	25 May 2005