SZFYX v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1768

FEDERAL COURT OF AUSTRALIA

SZFYX v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1768

SZFYX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 2020 of 2005

WILCOX J
2 DECEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2020 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFYX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	2 DECEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal against the decision of Federal Magistrate Nicholls be dismissed.

2.        The applicant pay the respondent's costs fixed at $600.00.

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 2020 of 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	WILCOX J
DATE:	2 DECEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for leave to appeal against a decision of Federal Magistrate Nicholls given on 3 June 2005 summarily dismissing an application seeking review of a decision of the Refugee Review Tribunal (‘the Tribunal’) that was handed down on 24 January 2002.  The applicant had elected not to attend the oral hearing appointed by the Tribunal.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, the respondent, to refuse to grant to the applicant a protection visa.

2. The applicant was informed of his right to seek review of the Tribunal's decision, by a letter sent to him at the time of the decision.  However, he took no action to seek review until 24 March 2005, when he filed an application in the Federal Magistrates Court.  The respondent applied for summary dismissal of that application on the ground of delay.  The magistrate acceded to that application.

3. In his reasons for decision, the magistrate dealt with an explanation of delay that had been provided by the applicant, namely, his medical problems.  The magistrate was not impressed with the quality of the evidence on this issue.  Today, the applicant told me the reason for the delay was that he was let down by his migration agent.  No such explanation was advanced to the magistrate.  It seems to me the magistrate was correct in regarding the delay in this case as unacceptable. 

4. I inquired from the applicant whether he was able to identify a basis upon which the Court could intervene in his case, that is to say, to identify a jurisdictional error.  I explained that this meant an error of law or a failure to follow the proper procedure.  The applicant was unable to identify any such error.  I have read the Tribunal's reasons myself and I do not see any jurisdictional error.  Accordingly, even if I was satisfied there was an explanation for the delay, it would be futile to grant leave to appeal.  I propose to dismiss the application for leave to appeal with costs.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            8 December 2005

The Applicant appeared in person.
Solicitor for the Respondent:	Mr R White of Sparke Helmore
Date of Hearing:	2 December 2005
Date of Judgment:	2 December 2005