SZHKU v Minister for Immigration and Multicultural Affairs

[2006] FCA 1450

FEDERAL COURT OF AUSTRALIA

SZHKU v Minister for Immigration and Multicultural Affairs [2006] FCA 1450

MIGRATION LAW – application for extension of time to file and serve notice of appeal – no arguable grounds of appeal – application dismissed

SZHKU & Ors v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 842 related

SZHKU, SZHKV, SZHKX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NSD 1378 OF 2006

GYLES J
1 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1378 OF 2006

BETWEEN:	SZHKU, SZHKV, SZHKX Applicants
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GYLES J
DATE OF ORDER:	1 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time be dismissed. 

2.The second applicant pay the costs of the respondent.

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 1378 OF 2006

BETWEEN:	SZHKU, SZHKV, SZHKX Applicants
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	GYLES J
DATE:	1 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time in which to file and serve a notice of appeal from a judgment of the Federal Magistrates Court delivered on 13 June 2006 (SZHKU & Ors v Minister for Immigration & Multicultural Affairs & Anor [2006] FMCA 842). The explanation for delay, which is not very great, is acceptable and, indeed, I do not think there is any serious dispute about it. However, for leave to be granted the applicants must also establish that there is a notice of appeal in proper form to file and that it discloses at least some argument with a possible chance of success on appeal.

2. That is the difficulty for these applicants.  They are unrepresented and, as has been mentioned in the course of oral submissions today, that means that they have difficulty in understanding and expressing their situation as required.  The draft notice of appeal which is put forward, and the affidavit which refers to it, is a hotchpotch of statements of some relevance to migration decisions generally, but with no independent application to this case and, indeed, the statements are incomprehensible. 

3. I have read the learned Federal Magistrate’s decision.  It is apparent that the application for judicial review to that court, seeking relief in relation to a decision of the Refugee Review Tribunal, was also not in proper form.  However, in addition to dealing with the stated grounds, which were rather inapt to raise any significant question, the learned Federal Magistrate went on to examine issues that may have been implied in those grounds or which might arise out of the Tribunal’s decision in the case.  In other words, it seems to me that Scarlett FM took pains to ensure that all possible arguments were considered.  There is no appealable error in those reasons which is identified in the draft notice of appeal put forward here. 

4. I drew the attention of the applicants to the problem they faced.  Not unnaturally, because they were unrepresented, they were not really able to advance the situation.  The oral submissions were really an appeal to the merits of the case and also endeavoured to draw attention to the current situation in Fiji which would, of course, only be relevant if there were any appealable ground to set aside the earlier decisions.  Whilst one may have considerable personal sympathy for the applicants and, particularly, the young lady who has spoken today, I regret to say that, from the legal point of view, the case is absolutely hopeless and it is not appropriate to burden the respondent and the Court with a hopeless appeal. 

5. Under the circumstances the application for an extension of time is dismissed. The second applicant is to pay the costs of the respondent.

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

Associate:

Dated:        7 November 2006

The Applicants appeared in person
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Phillips Fox

Date of Hearing:	1 November 2006
Date of Judgment:	1 November 2006