SZEGX v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1379

FEDERAL COURT OF AUSTRALIA

SZEGX v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1379

SZEGX v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1098 OF 2005

EMMETT J
14 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1098 OF 2005

BETWEEN:	SZEGX APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	14 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The time for filing and serving a notice of appeal be extended up to and including Friday, 16 September 2005.

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	NSD1098 OF 2005

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

JUDGE:	EMMETT J
DATE:	14 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application for an extension of time to file and serve a notice of appeal from a decision of the Federal Magistrates Court, given on 24 May 2005.  The reasons for that decision, dismissing an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’), were given orally.  However, the reasons were not published in writing until 15 August 2005.  In the meantime, on 4 July 2005, the applicant filed an application for an extension of time to appeal.

2. The applicant first appeared in person before me last week. At that stage there was some misunderstanding as to whether or not the applicant had attended a hearing of the Tribunal.  It now appears to be common ground that the applicant did not attend a hearing. 

3. Counsel has now appeared for the applicant and has propounded an argument that the Tribunal erred in the exercise of the discretion conferred by s 426A of the Migration Act 1958 (Cth) (‘the Act’), which provides that, if an applicant is invited to appear before the Tribunal and does not appear, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it.

4. In its reasons, the Tribunal records simply that the notice in the invitation was sent, that the applicant’s adviser informed the Tribunal that the advisers were unable to confirm whether or not the applicant would attend the hearing and the fact that the applicant did not appear. The Tribunal, in its reasons, also recorded that there were a number of issues upon which it required a good deal more detailed evidence before it could be satisfied that the applicants had a genuine fear of persecution. 

5. No intimation was given in the reasons as to those further issues.  It may be that the reasons of the Tribunal are adequate. However, it appears to me that it is at least arguable that the Tribunal has not examined fully the circumstances that arose in which the discretion to proceed in the absence of the applicant could be exercised.  On balance, I think it is appropriate to extend the time for filing and serving a notice of appeal up to and including Friday, 16 September 2005.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             27 September 2005

Counsel for the Applicant:	Mr S Prince
Solicitors for the Respondent:	Blake Dawson Waldron
Date of Hearing:	14 September 2005
Date of Judgment:	14 September 2005