SZFHJ v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1693

FEDERAL COURT OF AUSTRALIA

SZFHJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1693

MIGRATION – appeal from the Federal Magistrates Court – no error of law or principle

SZFHJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1992 OF 2005

TAMBERLIN J
SYDNEY
22 NOVEMBER 2005

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1992 OF 2005

BETWEEN:	SZFHJ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	22 NOVEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application for an extension of time to file and serve a notice of appeal is dismissed with costs.

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 1992 OF 2005

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

JUDGE:	TAMBERLIN J
DATE:	22 NOVEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal from a decision of Federal Magistrate Scarlet given on 23 September 2005. 

2. The Federal Magistrate dismissed an application for review of a decision of the Refugee Review Tribunal for failure of the applicant to appear at the final hearing on 23 September 2005.  The Federal Magistrate was satisfied that the applicant was aware that he needed to attend the hearing and that no communication or reason had been given by the applicant for his failure to attend.  The decision was an interlocutory one and therefore it is necessary for the applicant to apply for leave to appeal.  The applicant did not apply for leave to appeal within time.

3. There was some delay by the applicant in filing an application for an extension of time.  If the applicant was able to show that there was an arguable case, I would be disposed to grant the extension and allow a notice of appeal to be filed, however, the affidavit of the applicant of 20 October 2005 simply says that he did not receive a copy of the judgment of the Federal Magistrate until 4 October 2005 and was unable to lodge his appeal within the required time.  The applicant’s only grounds of appeal appear to be that the Federal Magistrate erred in law and was wrong in finding that the Tribunal acted properly in its findings.  There is no greater particularisation of the basis on which the applicant says that there is an error in the decision of either the Federal Magistrate or the Tribunal.

4. When the matter came on for hearing before me today, the applicant indicated that he was dissatisfied with the rejection by the Tribunal of certain documentary evidence that he had provided to the Tribunal, particularly those documents concerning his identity.  He claims refugee status on the basis that he has a well founded fear of persecution because of his political opinion.  The applicant says that he engaged in anti-government riots and, on this basis, he fears for his safety if returned to China. 

5. The Tribunal wrote to the applicant on two occasions informing him of the doubts that it entertained in relation to documents submitted by him.  These documents had been considered by a document examination section and the Tribunal accepted the view of the persons who examined the documents that several of the documents were fraudulent.

6. A number of other documents were filed by the applicant but, for reasons which the Tribunal gave, and in view of the information furnished by the document examination branch, it came to the conclusion that the documents were not reliable and rejected them on that basis.  Although the reasons of the Tribunal do not consider in great detail the status of all of the documents or set out its reasons for the rejection of each of them, I am satisfied that there was sufficient material before the Tribunal such that it was open to it to reach the conclusion that the applicant had not made out its case.

7. It was for the applicant to persuade the Tribunal, as a matter of fact, that he feared persecution on reasonable grounds and that there was a real chance that, if returned to China, he would suffer persecution.  In the circumstances, the Tribunal was not satisfied of this and I am not persuaded that there was any error in the decision of the Tribunal that would warrant review by either the Federal Magistrates Court or this Court.  Further, I am not satisfied that there was any error in the decision of the Federal Magistrate. 

8. Accordingly, I dismiss this application for an extension of time to file and serve a notice of appeal.  No arguable case has been advanced or indicated by the applicant that could be presented if leave to appeal was granted and therefore an extension of time would be futile.

9. Accordingly, the orders of the Court are that the application be dismissed with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            7 December 2005

The Applicant appeared in person with the assistance of an interpreter.
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	22 November 2005
Date of Judgment:	22 November 2005