SZHDM v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 252

FEDERAL COURT OF AUSTRALIA

SZHDM v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 252

SZHDM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 2575 of 2005

ALLSOP J
14 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 2575 of 2005

BETWEEN:	SZHDM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	14 MARCH 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time to file and serve a notice of appeal be dismissed.

2.The applicant pay the respondent's costs fixed in the sum of $1000.

THE COURT DIRECTS THAT: the solicitor for the respondent send a copy of these orders and reasons to the address for service on the applicant.

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 2575 of 2005

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

JUDGE:	ALLSOP J
DATE:	14 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter there is an application for an extension of time to file and serve a notice of appeal in relation to orders made by the Federal Magistrate's Court on 29 November 2005.  The application is supported by an affidavit of the applicant who did not seek to file a notice of appeal until after the 21 day period.  Thus an extension of time is required, thus leave is required.

2. The application was filed with an identified address for service.  In material provided to me by Ms Palmer who appears for the respondent this address was also on the outside of the envelope in which the Department as served with the application. 

3. The affidavit simply stated that the applicant was unable to lodge his application because he had not received the final terms of the settled reasons of the Magistrate.  The affidavit simply stated that the Magistrate erred in law and was wrong in finding that the Refugee Review Tribunal acted properly in its findings.

4. A draft notice of appeal reiterated those matters and gave no hint as to the substantive matter that might be argued.  By a letter dated 25 January 2006 the Registry of the Court sent to the applicant at the above address a letter indicating that the matter was on for hearing today and that an amended notice of appeal identifying all errors said to have been made by the Magistrate and giving full particulars thereof should be filed by 3 March 2006 together with full written submissions as to why the appeal should be allowed should leave be granted.  Neither document has been filed.

5. The matter was called on for hearing. There was no appearance by the applicant. The matter was called three times outside using the acronym provided by the Court by reason of the terms of s 91X of the Migration Act1958 (Cth). The floor of the Court was examined by the court officer for a Chinese male person who may have been the applicant. No such person was present.

6. I am asked to deal with the matter on the merits.  I propose to do so at a level of generality.  I have read the Tribunal's reasons in which the applicant was disbelieved as to his claims to be in fear of persecution upon return to China because of his Christian religion.  I have read the reasons of the learned Federal Magistrate which appear comprehensively to deal with the matters before him.  No apparent error is disclosed by my present reading of the Federal Magistrate's reasons.  None is certainly disclosed in anything filed on behalf of the applicant.

7. I do not propose to grant leave to extend time for the filing of an appeal and there is no basis whatsoever for even an appreciation of what would be argued on appeal.  I should add that I raised with Ms Palmer, who appears for the Minister, a question as to whether there was any possible SAAP issue, if I may use that expression.  She has indicated to me that she has examined her reasons of the Tribunal with that in mind and cannot identify any issue that may be to the advantage of the applicant.  I too, have read the reasons of the Tribunal and it does not appear that there is any application of the decision in SAAP v Ministerfor Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162.

8. Given that matter and given all the other circumstances to which I have referred the application for an extension of time to file and serve a notice of appeal is dismissed and I order the applicant pay the respondent's costs.

9. I direct that the solicitors for the respondent Minister send to the address shown for service on the application a copy of these reasons and orders when they are settled.

10. Ms Palmer has made an application for a fixed costs order.  She has not tendered any evidence but she has indicated to me, and I accept, what work has been done on the file.  I think an order for $1000 in costs is not unreasonable and likely to be obtained on taxation.  Thus, to avoid any further costs, I order that the applicant pay the respondent's costs fixed in the sum of $1000.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             21 March 2006

No appearance by the Applicant.
Counsel for the Respondent:	E Palmer
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	14 March 2006
Date of Judgment:	14 March 2006