SZFBE v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1008

FEDERAL COURT OF AUSTRALIA

SZFBE v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1008

SZFBE v Minister for Immigration & Multicultural & Indigenous Affairs

NSD 792 of 2005

EDMONDS J
28 JUNE 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	792 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFBE APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EDMONDS
DATE OF ORDER:	28 JUNE 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant’s application for an extension of time in which to file and serve a notice of appeal be dismissed.

2.The applicant pay the respondent’s costs fixed in the amount of $1,500.

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	792 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	EDMONDS
DATE:	28 JUNE 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT GIVEN EX TEMPORE
(REVISED FROM THE TRANSCRIPT)

1. This is an application for an extension of time to file and serve a notice of appeal against the whole of the judgment of the Federal Magistrates Court of Australia constituted by Federal Magistrate Scarlett given on 27 April 2005 at Sydney.  In considering such an application, the relevant authorities require me to have regard to three principle considerations.  Firstly, the length of the delay in filing the appeal; second, whether the respondent will suffer any prejudice by reason of the delay; and third, the nature of the injustice to the applicant if he is denied the right to appeal.

2. I have already indicated to the applicant that if I were only required to have regard to the first two considerations, I would be disposed to grant his application.  However, the third ground, namely the nature of the injustice to the applicant if he is denied the right to appeal, requires me to evaluate the prospects of an appeal on the grounds contained in the draft notice of appeal filed with his application for extension.  This requires me to identify whether the decision below contains any reviewable error.

3. In his reasons below, the Federal Magistrate said:

   “32.  The application shows no grounds for review of the decision of the Refugee Review Tribunal.  The applicant did not attend and according to him, he never knew the hearing was on.  That is hardly the fault of the Tribunal. 

   33.  I have examined the decision and there was no reviewable error.  As there is no reviewable error, the decision is protected by subsection 474(2) of the Migration Act, the privative clause decision.  As it is a privative clause decision, the application is out of time.  To use the technical phrase, it is not competent.  The application was made more than 28 days after the purported, at least, notification of the decision.

   34.  The applicant was aware of the decision at the very least when he was taken into custody.  The application must be dismissed…”

4. I am unable to discern in those reasons any error which could found a ground of appeal which is even arguable let alone likely to succeed in this Court.  I have therefore come to the conclusion that the applicant would not suffer any injustice by being denied the right to appeal.  Accordingly, I dismiss the application for an extension of time to file and serve a notice of appeal.

5. I will order that the applicant pay the respondent's costs fixed in the sum of $1500.

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

Associate:

Dated:             29 July 2005

The applicant appeared in person.
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	28 June 2005
Date of Judgment:	28 June 2005