SZILT v Minister for Immigration and Multicultural Affairs

[2006] FCA 1613

FEDERAL COURT OF AUSTRALIA

SZILT v Minister for Immigration & Multicultural Affairs
[2006] FCA 1613

SZILT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS and REFUGEE REVIEW TRIBUNAL
NSD 1478 OF 2006

MADGWICK J
13 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1478 OF 2006

BETWEEN:

SZILT
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	13 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application to extend time in which to file an application for leave to appeal be refused.

2.The applicant is to pay the first respondent’s costs, assessed in the sum of $1600.

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 1478 OF 2006

BETWEEN:

SZILT
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MADGWICK J
DATE:	13 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an applicantion for leave to appeal from a judgment of the Federal Magistrates Court given by Federal Magistrate Smith on 4 July 2006. The learned Federal Magistrate dismissed the applicant’s application for judicial review of an adverse decision of the Refugee Review Tribunal (‘the Tribunal’) pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules (2001) (Cth). His Honour thought that there was no prospect that the applicant could raise an arguable case for the relief claimed.

2. The applicant lodged his application for leave to appeal and a supporting affidavit on 3 August 2006, that is, 30 days after the Federal Magistrates Court judgment, although the rules require that notices of appeal be lodged within 21 days.  The applicant really provides no comprehensible explanation at all for this delay.  There is no explanation in his affidavit for it.  Here today I tried to give him an opportunity to say something that might excuse the not very long delay.  He persisted in telling me that he was awaiting documents from India that might support his case.  However, his affidavit asserts that the Court below ‘dismissed the applicant’s proceeding without cogent ground’ and had breached ‘rules of natural justice and procedural fairness’.

3. It further says that the Tribunal breached the rules of natural justice and asserts that the applicant failed to appear before the Tribunal, ‘due to health reason’, which ‘was explained to the Tribunal but the Tribunal did not take it into consideration when making its decision.’  None of that has anything at all to do with obtaining information from India, nor might any information from India have assisted any of those grounds.  In any case, the applicant had had plenty of time both before and after the Tribunal decision to obtain any information from India that he could somehow make relevant to his case.  There is, in the circumstances, no adequate explanation for the delay.

4. Secondly, and more importantly, the learned Federal Magistrate’s decision is not attended by sufficient doubt to warrant the grant of leave to appeal.  It would, indeed, be futile to allow leave to appeal since his Honour was plainly right for the reasons that he gave.  No attempt was made to raise any serious legal criticism of the proceedings before the Tribunal.  Indeed, of the applicant’s failure to attend before the Tribunal and his failure to contact the Tribunal to explain his absence, the learned Federal Magistrate said (at [12]-[13]):

   ‘He said that his absence was because he was feeling ill on the day of the hearing, but did not present any evidence of this to the Tribunal or the Court.

   In my opinion, there is no argument available to the applicant which could show that the Tribunal did not have the power to proceed under s. 426A(1), or that its decision to use that power has miscarried.’

5. The application to extend time in which to file an application for leave to appeal will be refused and, alternatively, I would dismiss the application for leave to appeal.  The applicant is to pay the first respondent’s costs,  assessed in the sum of $1600.

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

Associate:

Dated:        23 November 2006

Counsel for the Applicant:	The Applicant appeared in person
Solicitors for the Respondent:	Phillips Fox
Date of Hearing:	13 November 2006
Date of Judgment:	13 November 2006