SZHIV v Minister for Immigration and Multicultural Affairs

[2006] FCA 1207

FEDERAL COURT OF AUSTRALIA

SZHIV v Minister for Immigration & Multicultural Affairs [2006] FCA 1207

SZHIV v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 1172 OF 2006

MADGWICK J
31 AUGUST 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1172 OF 2006

BETWEEN:

SZHIV
Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	31 AUGUST 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The Refugee Review Tribunal be joined as the Second Respondent.

2.The application for leave to appeal be dismissed with costs assessed in the sum of $3200.

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 1172 OF 2006

BETWEEN:

SZHIV
Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE:	31 AUGUST 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:  

1. This is an application for an extension of time in which to file and serve a notice of appeal from the judgment of Wilcox J given on 21 April 2006 at Sydney. 

2. The appeal should have been made within 21 days, but no such appeal was made.  The application for leave to appeal was filed on 16 June 2006, which is about 5 weeks after the 21 day period set out in the Federal Court Rules as the time for appeal.

3. The applicant claims that he relied on a lawyer to lodge his appeal and that he was told by the lawyer that he had done so.  Having, however, not heard from the lawyer for two weeks he caused inquiries to be made of the Court registry which indicated that there was no appeal which had been filed.  He says that he is illiterate and complains of difficulties in the detention centre where he is incarcerated.  He says:

   ‘Here it takes two weeks to prepare any legal document, [which] might be compared to [a] two days’ job if someone is not detained.’

4. The notice of appeal speaks of:

   ‘Jurisdictional error taking into account Australia’s ratification [of] the United Nations Convention on the Rights of the Child’;

   and an allegation that the Tribunal Member failed to understand his claims and to consider relevant matters.  It was said that further particulars would be provided but they have not been. 

5. Next, the applicant says that the Refugee Review Tribunal (‘the Tribunal’) fell into jurisdictional error by not recognising his de facto relationship ‘as having the same standing as marriage’.  He alleges that he was not accorded natural justice.  Further particulars of this were also promised but have not been provided.  He lastly complains that the respondent Minister refused to revoke the cancellation of his visa without any proper grounds or proper investigation.

6. For the reasons explained by Wilcox J there is no apparent jurisdictional error in the reasons of the Tribunal and the grounds, such as they are, set out in the intended notice of appeal appear to me to be quite unarguable.  I see no prospect of success at all in an appeal if leave to file a notice of appeal were granted.

7. As the solicitor for the respondent points out, the applicant’s explanation for his delay does not fully account at all for the delay in filing the notice of appeal, and the reasons given do not constitute special reasons.  In any case, there is no reasonable prospect of success with the appeal and to permit it to proceed would be simply futile. 

8. The application for leave to appeal will be refused with costs.  I assess costs in the sum of $3200. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:
Dated:        8 September 2006

Counsel for the Applicant:	The applicant appeared in person.
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	31 August 2006
Date of Judgment:	31 August 2006