SZENB v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1321

FEDERAL COURT OF AUSTRALIA

SZENB v Minister for Immigration and Multicultural and Indigenous Affairs [2005[ FCA 1321

MIGRATION – application for extension of time to file and serve a Notice of Appeal from the Federal Magistrates Court – no satisfactory explanation for delay – no substance in the arguments sought to be made by the applicant if an extension of time is granted – application refused

Migration Act 1958 (Cth) s 424A

NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 distinguished

SZENB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 791 OF 2005

TAMBERLIN J
SYDNEY
1 SEPTEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 791 OF 2005

BETWEEN:	SZENB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	1 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave is granted for the Refugee Review Tribunal to be joined as a second respondent to the proceedings.

2.        The application is dismissed.

3.        The applicant is to pay the costs of the respondent.

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 791 OF 2005

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

JUDGE:	TAMBERLIN J
DATE:	1 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to file and serve a Notice of Appeal from a judgment of Federal Magistrate Mowbray (“the Federal Magistrate”) delivered on 3 February 2005.  The Federal Magistrate allowed an objection to competency and dismissed the application.

2. I have been addressed by both parties on the present application for an extension of time.

3. There are two principal matters that need to be satisfied in relation to the granting of leave to appeal in this matter.  The first matter is whether there has been any satisfactory explanation given for the delay.  In the present case, I am not satisfied that any proper explanation has been given by the applicant for the delay in filing the application for review.  This is an important factor to take into account.

4. The second matter is whether there is any substance in the argument sought to be made by the applicant if leave were granted or an extension of time were given in relation to this matter. In support of the application, Mr Gormly has suggested that there was a breach of s 424A(1) of the Migration Act 1958 (Cth) and also that a recent decision of a Full Court of this Court in NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 (NAJT), handed down on 24 August 2005, is relevant to this case and, of course, it is binding on me as it is a decision of a Full Court.  I have given consideration to the reasoning in NAJT, which turned, in the relevant passages to which I have been referred, namely, [126] and [197], on the characterisation of a letter and the approach that was taken by the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) in relation to that letter.

5. The relevant passages in NAJT are as follows.  At [126], their Honours refer to the statement of the delegate of the Minister that:

   “I note that my letter to the [appellant] was returned to this office unclaimed on 9 May, 2002 having been sent to the last postal address supplied by her on 22 March this year. I believe that the [appellant´s] failure to make adequate arrangements in maintaining contact with the Department reflects poorly on the genuineness and well foundedness of her claims of fear of persecution.”

6. At [127], the delegate is quoted by their Honours as saying:

   “Accordingly, I am not satisfied the [appellant] has a well founded fear of persecution on either of the [C]onvention grounds of religion or political opinion, or cumulatively as a combination of these two grounds. I do not believe on the evidence presented that there is any real chance of the [appellant] suffering any [C]onvention based persecution, should she be required to return to China.”

7. In the present case, the passage that has principally been referred to by Mr Gormly appears on p 11 of the decision of the Tribunal where the member remarked:

   “The applicant's claims could not be tested at hearing by the Tribunal.  These same claims could not be tested at the primary level either as the applicant chose not to comment on information forwarded to him.  There is nothing to support the applicant's claims other than the written material provided by him.”

8. As I understand Mr Gormly’s argument, it is that the reference to the applicant choosing not to comment on the forwarded information amounted to an assertion that the applicant, having been notified by the letter, deliberately elected not to comment on the information.  In fact, the applicant was not served with the letter and therefore there could be no question of him choosing not to comment on it.

9. I do not think the construction contended for by Mr Gormly is reasonably open.  What the Tribunal is saying in its reasons is that the claims of the applicant could not be tested because he had not come to give information.  I do not think anything more was implied by the Tribunal as a consequence of that observation.  It was simply a way of expressing the fact that there was no material before the Tribunal except the vague details advanced by the applicant in writing, which were on the file and available to the Tribunal member.  I do not think that the present case resembles the decision in NAJT because in that case there was a clear inference drawn as to the non-genuineness of the applicant as a consequence of not making arrangements for a change of address to be recorded.

10. I have looked at the Tribunal’s findings and reasons and the decision as a whole and I am not persuaded that there is any material that comes within s 424A. I do not think that there is an arguable case or a case of sufficient strength to warrant the granting of leave in this matter.

11. Accordingly, for the reasons outlined above, especially the failure of the applicant to provide a satisfactory explanation of the considerable delay that no point would be served in granting leave to appeal or an extension of time, I dismiss the present application.

12. Mr Gormly has drawn my attention to two paragraphs on p 27 of the affidavit of the applicant, which was filed in Court today.  These paragraphs are from the applicant’s draft Notice of Appeal and are in the following terms:

    “The Tribunal did not give to the appellant written particulars of information which was part of the reason for affirming the Tribunal's decision, nor did the Tribunal give a written invitation to the appellant to comment on the information.

    The relevant information was described by the Tribunal under the heading “Findings and Reasons” as follows:

    ·     ‘The applicant’s action in not responding to the request by the Minister's delegate to comment on information;

    ·     his failure in providing any further details subsequent to his Application for Review; and

    ·     his failure to attend the hearing arranged at the Tribunal’.”

13. In the circumstances, I do not think that this constitutes a failure by the Tribunal to provide required information. The applicant failed to provide any details subsequent to his application for review and failed to attend the hearing. In my view, there was no error committed by the Tribunal in relation to these matters and I do not think it was necessary in the circumstances of the present case to furnish the information pursuant to the requirements of s 424A. Accordingly, the order of the court is that the appeal is dismissed.

14. Having regard to the outcome of this matter, I order that the applicant pay the costs of the respondent.  I will not assess the amount of those costs at this point and I leave that for taxation in due course.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            19 September 2005

Counsel for the Applicant:	J Gormly
Solicitor for the Applicant:	R Balding
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	1 September 2005
Date of Judgment:	1 September 2005