SZFSD v Minister for Immigration and Citizenship

[2007] FCA 1431

FEDERAL COURT OF AUSTRALIA

SZFSD v Minister for Immigration and Citizenship [2007] FCA 1431

SZFSD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 619 OF 2007

GRAHAM J
13 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 619 OF 2007

BETWEEN:

SZFSD
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	13 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for extension of time to file and serve a Notice of Appeal, filed 12 April 2007, be dismissed.

2.The applicant pay the first respondent’s costs of the application.

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 619 OF 2007

BETWEEN:

SZFSD
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	13 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The application presently before the Court is an application for extension of time in which to file and serve a Notice of Appeal. The application seeks an extension of time in respect of orders made by Federal Magistrate Lucev on 24 August 2006 in accordance with Rule 13.03A(c) of the Federal Magistrates Court Rules.  When the matter was called for hearing, the applicant failed to attend.  His non-attendance is entirely consistent with the attitude which he has displayed towards hearings that he has initiated in the past. 

2. The applicant is said to have been born in Jiangsu in the People’s Republic of China on 19 August 1967.  It is said that he arrived in Australia on 12 July 2004, travelling on a Chinese passport and having the benefit of an Australian visa issued on 9 June 2004.

3. On 4 August 2004 the applicant applied for a Protection (Class XA) visa.  By letter dated 12 August 2004 a Delegate of the Minister advised the applicant that his application for a protection visa had been refused because he did not satisfy the criterion for a protection visa, namely that he be a non-citizen in Australia, to whom Australia had protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (collectively referred to as ‘the Refugees Convention’).

4. On 1 September 2004 the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for a review of the Minister’s Delegate’s decision.  By a letter dated 22 October 2004 the Tribunal invited the applicant to attend a hearing before it on 19 November 2004.  The applicant failed to attend the hearing before the Tribunal at the appointed time and place on 19 November 2004. 

5. On 25 November 2004, the Tribunal constituted by Ms Pope decided to affirm the decision of the Minister’s Delegate not to grant a protection visa to the applicant.  That decision was handed down on 16 December 2004. 

6. By an application filed 9 February 2005 the applicant sought constitutional writ relief in respect of the Tribunal’s decision.  On the appointed day for the hearing of the application before the Federal Magistrates Court, the applicant failed to attend whereupon his application was dismissed and an order was made for the payment of costs in the sum of $4400. 

7. In accordance with Order 52 rule 15(1) of the Federal Court Rules the time limit for bringing an appeal from a judgment of a Federal Magistrate is 21 days after the date the judgment appealed from was pronounced. 

8. No Notice of Appeal was filed by the applicant within the requisite 21 day period in respect of the orders of Lucev FM made on 24 August 2006.  Were an appeal otherwise competent it would be necessary for the applicant to obtain an extension of time within which to file and serve a Notice of Appeal, given that the 21 day period expired several months ago.  

9. Whatever else may be said about the current application, it is clear that no special reasons have been established which would warrant an extension of time within which to file and serve a Notice of Appeal. 

10. On 6 June 2007 Deputy District Registrar Farrell gave certain directions indicating that the present application would be heard on a date to be fixed in the period 30 July – 20 August 2007.  A direction was made requiring the applicant to file and serve full written submissions upon which he sought to rely in support of his application no later than five clear working days before the hearing date. 

11. By letter dated 2 July 2007 from the Court to the applicant at his nominated address for service, he was advised that his application would be heard today, not before 2.15 pm.  That letter was returned to the court marked ‘return to sender’.  The solicitors for the Minister also wrote to the applicant at his nominated address for service on 30 July 2007 enclosing a copy of the respondent’s submissions.  The letter confirmed that the matter was listed for hearing today at 2.15 pm before me.  It included the following:

    ‘You are required to attend court on this occasion.

    If you do not attend on this occasion, the respondent will seek orders from the court that your matter be dismissed and that you pay the minister’s legal costs of the proceedings.’

12. The original of that letter, which was forwarded by Express Post, was returned to the solicitors for the Minister, it being noted that upon its return it had been opened but the original letter remained within the envelope.  A return address appeared on the reverse side of the envelope indicating that it was unnecessary for Australia Post to open the envelope to ascertain the appropriate return address. 

13. Given the non-attendance of the applicant before the Court today, the respondent Minister has asked that the Court order that the application be dismissed as to the whole of the relief claimed by the applicant due to the failure of the applicant to prosecute his application with due diligence. 

14. Had the applicant appeared he would have experienced considerable difficulty in explaining his delay in bringing his application.  He would also, on the basis of the record before the Court, have had difficulty in establishing that there was any merit in his claims of jurisdictional error on the part of the Tribunal. 

15. In the circumstances I propose to order that the application filed 12 April 2007 be dismissed. 

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

Associate:

Dated:        11 September 2007

The Applicant did not appear.
Solicitor for the First and Second Respondents:	B M Rayment of Sparke Helmore
Date of Hearing:	13 August 2007
Date of Judgment:	13 August 2007