SZGGH v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 282

FEDERAL COURT OF AUSTRALIA

SZGGH v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 282

SZGGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 369 OF 2006

WILCOX J
9 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 369 OF 2006

BETWEEN:	SZGGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	9 MARCH 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for extension of time to appeal be 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 369 OF 2006

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

JUDGE:	WILCOX J
DATE:	9 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for an extension of time in which to appeal to this Court from a decision of Federal Magistrate Driver, given on 5 August 2005.  The application was filed on 22 February 2006, that is to say, over six months after the Magistrate's decision.  The only explanation given for the delay was that the applicant said that he needed time to get his documents together.  It is not clear to me what documents the applicant was referring to as he says he understands that he can only succeed in this Court if he can show jurisdictional error.

2. The applicant did not attend the oral hearing to which he was invited by the Refugee Review Tribunal (‘the Tribunal’).  He said that this was because he did not know of the hearing.  That may be true, however, it is clear that the Tribunal took some pains to ensure that the applicant had notice of the hearing.  The Tribunal sent a letter to the applicant at the address for service that he had provided on his application for review.  This is clear from documents that are reproduced in the Court Book. It seems also that the Tribunal sent a letter to the applicant at the home address he had given on his application form, but this letter was returned unclaimed.

3. According to the reasons for decision of the Tribunal, when the letter was returned unclaimed, a Tribunal staff member rang the applicant's adviser.  The staff member was told by the adviser that she could not get in touch with the applicant and did not know whether he would come to the hearing.  Neither the Tribunal nor the Department had any more recent address for the applicant and no telephone number had been provided by him.  The applicant did not appear on the appointed hearing day.  Under those circumstances, the Tribunal proceeded to make its decision.  The decision was adverse to the applicant.

4. The applicant sought review of the Tribunal decision in the Federal Magistrates Court.  He raised the question of whether he had been given notice of the Tribunal hearing.  The Magistrate went into this matter in some detail and concluded that there was no procedural unfairness and no breach of procedure in the Tribunal acting as it did.  Neither was there any actual or constructive failure to consider the applicant's claims.  The Magistrate was unable to discern any jurisdictional error.  It seems to me the Magistrate's decision was clearly right. 

5. The delay in instituting the appeal in this Court is considerable.  I would not be prepared to extend time to appeal unless persuaded that the applicant had a fairly arguable case.  I am not so persuaded.  On the contrary, it seems to me that the appeal would be doomed to failure.  Accordingly, I propose to order that the application for extension of time to appeal be dismissed with costs.

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

Associate:

Dated:            22 March 2006

The Applicant appeared in person.
Solicitor for the Respondent:	Ms T Quinn of Phillips Fox
Date of Hearing:	9 March 2006
Date of Judgment:	9 March 2006