SZGPX v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 1068

FEDERAL COURT OF AUSTRALIA

SZGPX v Minister for Immigration & Multicultural & Indigenous Affairs
[2006] FCA 1068

SZGPX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 757 OF 2006

BENNETT J
4 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 757 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGPX
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE OF ORDER:	4 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave for an extension of time in which to file an application for leave to appeal is dismissed and an order that compliance with O 52 r 5(2) of the Federal Court Rules be dispensed with is refused.

2.The applicant pay the first respondent’s 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 757 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZGPX
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	BENNETT J
DATE:	4 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal from the decision of the Federal Magistrates Court in SZGPX v Minister for Immigration & Anor [2006] FMCA 748 dismissing his motion to reinstate an application for judicial review of a decision of the Refugee Review Tribunal.

2. As was stated by Federal Magistrate Emmett at [6], at the heart of the applicant’s application is his claim that the signature that appears on the notice of discontinuance filed in the application for judicial review on 17 November 2005 is not his signature.  The applicant requires an order that compliance with O 52 r 5(2) of the Federal Court Rules be dispensed with because his application for leave to appeal from the Federal Magistrate’s decision was filed out of time.

3. The draft notice of appeal presented to the Court asserts that there was a breach of the rules of natural justice in connection with the Federal Magistrate’s decision, that the applicant was denied procedural fairness in connection with the making of that decision and that her Honour’s decision was an improper exercise of power. 

4. Her Honour pointed out in her decision that it was for the applicant to satisfy the court that on the balance of probabilities he did not sign the notice of discontinuance nor file it with the court (at [9]).  Her Honour considered the applicant’s evidence and other matters that were put to her and said that she was not satisfied on the balance of probabilities that the notice of discontinuance was not filed by or at the request of the applicant nor that the signature on the notice was not, in fact, his (at [13]).

5. No particulars in relation to any of the grounds of appeal are given.  None are set out in the affidavit filed by the applicant in support of his application.  The applicant appeared before me today in person and put matters in support of his application.  Despite being directed to the need to demonstrate error on the part of the Federal Magistrate he basically repeated the factual matters that had been put to her Honour.  His real complaint is that her Honour found the facts against him.  He has, however, failed to demonstrate any error in her Honour’s reasons or her Honour’s conclusion, and none is apparent to me.  I see nothing in her Honour’s reasons to support any of the grounds set out in the draft notice of appeal.  Accordingly, the application for leave for an extension of time in which to file an application for leave to appeal is dismissed and an order that compliance with O 52 r 5(2) of the Federal Court Rules be dispensed with is refused. 

6. The applicant is to pay the first respondent’s costs of the application. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

Associate:

Dated:        17 August 2006

The Applicant appeared in person
Solicitor for the First Respondent:	Clayton Utz
Date of Hearing:	4 August 2006
Date of Judgment:	4 August 2006