SZFXJ v Minister for Immigration & Citizenship & Anor

[2007] HCATrans 268

[2007] HCATrans 268

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S129 of 2007

B e t w e e n -

SZFXJ

Applicant

and

MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 28 MAY 2007, AT 9.28 AM

Copyright in the High Court of Australia

MR B.A. CRAMER:   If the Court pleases, I appear for first respondent.  (instructed by Blake Dawson Waldron)

HIS HONOUR:   There is a possibility that the applicant is late so we may have to adjourn this or stand it in the list. 

COURT OFFICER:   No appearance, your Honour. 

MR CRAMER:   I am in your Honour’s hands in that regard. 

HIS HONOUR:   It is not inconvenient to you to just wait?

MR CRAMER:   No, it is not, your Honour.

HIS HONOUR:   Very well.  This matter will stand in the list and will be called later to see if the applicant has arrived.

MR CRAMER:   If the Court pleases.

AT 9.29 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.01 AM

SZFXJ appeared in person.

NUTAN MAHARAJ, affirmed as interpreter:

HIS HONOUR:   The Registrar has certified that he has been advised by the solicitor for the second respondent that the second respondent will submit to the order of the Court save as to costs.  Could you tell the applicant that I have read all the material in the file and ask him whether there is anything additional he wants to say about his application.

SZFXJ (through interpreter):   I just want to ask your Honour that I have already given everything in writing in the evidence.  Apart from that, if your Honour needs something else, then I am prepared to give.

HIS HONOUR:   Thank you.  I need not trouble you, Mr Cramer.

On 4 February 2005 the Refugee Review Tribunal affirmed a decision by a delegate of the first respondent not to grant the applicant a protection visa.  The Tribunal did not accept the veracity of many of the applicants’ claims of fearing political persecution.  On 28 August 2006, the Federal Magistrates Court, Federal Magistrate Raphael, dismissed an application for judicial review on the ground that even if the Tribunal fell into jurisdictional error, an issue which it did not decide, there were ample grounds for concluding that the applicant did not have any subjective fear of persecution.

On 23 February 2007, the Federal Court of Australia, Justice Siopis, dismissed an application on the ground that no jurisdictional error by the Tribunal had been shown.  On 23 March 2007 the applicant applied for special leave to appeal to this Court.  He failed to file a draft notice of appeal and written case within 28 days of the date when the special leave application was filed.  Pursuant to rule 41.10.4 of the High Court Rules, that application is deemed to have been abandoned.  The relevant documents were presented for filing about one month late. 

The applicant now applies by summons filed on 24 April 2007 for an order reinstating his special leave application.  His explanation for the delay is that he only became aware of the requirements of the Rules when he received a letter from the Registry on 20 April 2007 and had no time to prepare and file the documents described above since he lives in St Albans in Victoria.  Whatever the merits of that excuse, the application should be dismissed because to grant it would be futile.  There is no error in Justice Siopis’ reasoning and an appeal would inevitably fail.  Accordingly, the summons is dismissed with costs.

AT 10.05 AM THE MATTER WAS CONCLUDED