SZIFR v Minister for Immigration and Citizenship

[2007] FCA 288

FEDERAL COURT OF AUSTRALIA

SZIFR v Minister for Immigration & Citizenship [2007] FCA 288

SZIFR v MINISTER FOR IMMIGRATION AND CITIZENSHIP
NSD 1916 OF 2006

BUCHANAN  J
22 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1916 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIFR Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	BUCHANAN  J
DATE OF ORDER:	22 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave is granted to alter the title of the proceedings so that the first respondent is named the Minister for Immigration and Citizenship.

2.The application for an extension of time is dismissed with 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 1916 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIFR Appellant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	BUCHANAN  J
DATE:	22 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. This is an application for an extension of time in which to bring an appeal from a judgment of the Federal Magistrates Court.  I have written submissions upon the question of the extension of time and upon the substance of the grounds of appeal from both the applicant and the first respondent.  The application for an extension of time was made a short period only after the time to file an appeal expired.  It was made four days out of time.  No special reason has been shown why an extension should be granted but the delay is short and, in my view, no real question of prejudice to the first respondent arises.  However, an extension will not normally be granted where it would be futile to do so.  Some consideration of the substance of the appeal should an extension of time be granted is therefore appropriate. 

2. The applicant claims to be a citizen of Sri Lanka.  He was born in Italy but claims not to be entitled to citizenship of that country, although his Sri Lankan passport shows him as having dual citizenship.  He arrived in Australia on 30 June 2001, when he was about 19 years old, on a student visa.  It appears from the decision of the Refugee Review Tribunal (‘the RRT’) which was signed on 6 December 2005 and handed down on 3 January 2006, and which provides the foundation for the application to the Federal Magistrates Court, to which the present application relates, that at some point in time his student visa was cancelled.  He appealed to the Federal Court against the cancellation but the decision of the Court which was given on 5 August 2005 was against him.  He then applied on 19 August 2005 for a protection (class XA) visa.  On 14 September 2005 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the application.

3. On 11 October 2005 the applicant applied to the RRT for review of the delegate's decision.  On 13 October 2005 he was advised by letter that the RRT would review the departmental file and may either, as a result of that review, make a decision in his favour or invite him to attend a hearing before the RRT.  It was explained to him why a hearing was an important opportunity to provide oral or documentary evidence.  On 1 November 2005 he was advised by letter that the RRT would be unable to make a favourable decision based solely upon the information before it.  The applicant was invited to a hearing on 2 December 2005 to present evidence and argument in support of his application.  Under the Migration Regulations 1994, reg 4.35D, at least 14 days notice of the hearing was required. As the applicant was deemed to have received the invitation to the hearing on 8 November 2005 (s 441C(4)) a hearing on 2 December was possible. He made no response and did not attend.

4. The applicant was advised by a letter, dated 6 December 2005, that a decision had been made and would be handed down on 3 January 2006.  In its decision of 3 January 2006, the RRT affirmed the decision of the delegate not to grant a protection visa.  The RRT was not satisfied that the applicant's claims should be accepted.  A central reason given for that conclusion was that the RRT had not been able to test the applicant's assertions with him or explore his claims or receive further explanations from him about the matters which he had asserted.

5. The RRT was entitled to proceed to make its decision in the applicant’s absence by reason of the provisions of s 426A of the Migration Act 1958 (Cth) (‘the Act’). The fact that it proceeded to make an unfavourable decision cannot in my view, in the circumstances of the present case, constitute a jurisdictional error or afford a ground for successful judicial review.

6. On 4 September 2006 Barnes FM dismissed an application for judicial review of the decision of the RRT. The contentions of the applicant, that he was entitled to relief because he was denied a proper opportunity to put material before the RRT, were correctly rejected, as was a contention that the RRT was obliged, under s 424A of the Act, to alert him further to the possibility that the material before it might be inadequate to support his claims and also an assertion that he should simply have been provided with an adjournment.

7. The appeal sought to be brought to this Court will, having regard to the grounds proposed in the draft Notice of Appeal to be relied upon if an extension of time is granted, ventilate the same matters, although this time in the form of contentions that Barnes FM committed legal errors by failing to find in the applicant's favour.  In my view the contentions have no foundation which appears from the material before the Court, including the submissions upon which the applicant relies this afternoon.  Those contentions in the circumstances would necessarily be rejected.  It is not appropriate to grant an extension of time in those circumstances.  The extension of time will be refused with costs.

8. The orders which I will make are that:

   1.Leave is granted to alter the title of the proceedings so that the first respondent is named Minister for Immigration and Citizenship;

   2.The application for an extension of time is dismissed with costs.

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

Associate:
Dated:       7 March 2007

The appellant appeared in person
Solicitor for the Respondent:	Mr A Cox of DLA Phillips Fox
Date of Hearing:	22 February 2007
Date of Judgment:	22 February 2007