SZIBH v Minister for Immigration and Citizenship

[2007] FCA 840

FEDERAL COURT OF AUSTRALIA

SZIBH v Minister for Immigration & Citizenship [2007] FCA 840

SZIBH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 713 OF 2007

MADGWICK J
25 MAY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 713 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIBH
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	25 MAY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the first respondent’s costs of the application assessed in the sum of $1,000.

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 713 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIBH
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE:	25 MAY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal. 

2. The applicant came to Australia in July 2005 from China and claimed refugee status by way of lodging an application for a protection visa.  The basis of her claim was that she feared persecution for reasons of religion, she having, she says, adopted the Jehovah’s Witness faith.  When a delegate of the first respondent refused the application the applicant sought review from the Refugee Review Tribunal (“the Tribunal”) which invited her to be present at the hearing to be held on 16 November 2005.  Despite every effort by the Tribunal to give her the opportunity to attend, she ultimately declined the invitation and the Tribunal rejected her claims on the basis that it could not be satisfied of the truth of what she was saying.

3. The Tribunal decided the matter adversely to her on 22 November 2005 (handed down 13 December 2005) and the applicant applied to the Federal Magistrates Court on 6 January 2006 for judicial review.  The Federal Magistrates Court, by the decision of Barnes FM given on 9 October 2006, rejected this application.  The applicant applied to this Court on 20 April 2007. 

4. She claims that she told her “agent,” to whom she had paid money, that she wished to appeal from the decision of the Federal Magistrates Court and only when she had heard nothing did she approach this Court to find out that no appeal had been lodged.  I am prepared to assume that that explanation is correct. 

5. The problem is that, on the face of the decisions of the Tribunal and of the Federal Magistrates Court, there is no apparent jurisdictional error made by the Tribunal or any discernible error made by the Court below. 

6. There is no intended notice of appeal filed, but in an affidavit the applicant claims that the Tribunal had not paid careful attention to the applicant’s evidence and did not really know and understand the truth about the Chinese Government’s persecution of Christians so that she needed an “extension of time to prepare more evidence”.  The applicant was self-represented.  Orally, she complained also that her case was first fixed by the Federal Magistrates Court about 13 months after she lodged her application in that Court but the hearing date was ultimately brought forward by a year so that she only had somewhere between two and four weeks’ notice of the hearing.  That time, she said, was insufficient to enable her to obtain more evidence about her case and conditions in China. 

7. It is apparent that the applicant has at all times misunderstood, and I think still misunderstands, the nature of the jurisdiction of the Federal Magistrates Court and of the jurisdiction of this Court, despite my evidently inadequate effort to explain the position to her.

8. The projected appeal appears to have no prospect of success whatsoever.  It would be futile to grant an extension of time to enable it to proceed and I decline to extend the time for her to do so. 

9. The application will be dismissed with costs, assessed in the sum of $1,000.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:       31 May 2007

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	25 May 2007
Date of Judgment:	25 May 2007