SZIVB v Minister for Immigration and Citizenship

[2007] FCA 231

FEDERAL COURT OF AUSTRALIA

SZIVB v Minister for Immigration and Citizenship [2007] FCA 231

Migration Act 1958 (Cth) ss 424A(1), 425

Federal Court Rules O 52 r 15, O 52 r 15(1)

SZIVB v Minister for Immigration and Multicultural Affairs & Anor [2006] FMCA 1421

SZIVB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1986 OF 2006

NICHOLSON J
20 FEBRUARY 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1986 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIVB
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLSON J
DATE OF ORDER:	20 FEBRUARY 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The description of the first respondent be amended to ‘Minister for Immigration and Citizenship’.

2.The application for extension of time within which to file and serve a notice of appeal be dismissed.

3.The applicant pay the first respondent's costs of the application fixed in the sum of $3800.

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 1986 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIVB
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NICHOLSON J
DATE:	20 FEBRUARY 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks an extension of time to file and serve a notice of appeal.  Order 52 r 15(5) of the Federal Court Rules provides for such an application to be made.

2. The decision of the Federal Magistrate was given on 12 September 2006 (SZIVB v Minister for Immigration and Multicultural Affairs & Anor [2006] FMCA 1421). By O 52 r 15(1) of the Federal Court Rules, the applicant had 21 days within which to lodge a notice of appeal.  The application for extension of time was filed on 11 October 2006 and was not greatly out of time.

3. The law requires an applicant for such extension to do two things; the first is to explain the delay; the second is to show whether, if the application were granted, there are prospects of success in the appeal.

4. As to the first of these, I accept that the applicant could not be taken to know the details of Australian law and, as she was and is an unrepresented person, the delay is explicable.

5. However, the real issue facing the applicant's case is the second question of whether there are prospects of success on the appeal.  The applicant has filed a submission on 6 February 2007 which in effect is a draft notice of appeal if the time was extended.  She has also made an oral statement to the Court.  Understandably in both of them she has focussed on issues of fact and the merits of the evidence she brought.  Those are matters which in Australian law the Tribunal is alone to determine, subject to it not making any errors of law. 

6. The applicant has focussed attention on the evidence in the documentary form of three letters which she provided.  She has referred to photographs she tendered.  She has referred to the issue of her health on which the Tribunal made a finding.  She referred to bias in the Tribunal.  All those matters arose in her oral submissions.

7. In her written submissions she claimed that there were adverse matters that should have been put to her under s 424A(1) of the Migration Act 1958 (Cth) (the Act). She also said the Tribunal had failed to consider independent information relating to Shouters and ignored independent country information. Thirdly, in the written submission the applicant claimed that the Federal Magistrate had ignored important issues which the Tribunal had failed to comply with in relation to s 425 of the Act. These were issues relating to the interpreter and other negative issues.

8. All of these were addressed by the Federal Magistrate.  In order to set aside the decision of the Federal Magistrate, the applicant would have to establish that her Honour had been in error of law.  This she could do if she could show the Tribunal was in error of law.  In my view neither of those conditions can be satisfied.

9. The factual matters and the weighing of evidence was something the Tribunal was entitled to do and even if it was in error of fact, that would not be an error of law.  In relation to the application of the sections of the Act, I accept the submissions made for the first respondent that the grounds as outlined in the written submission from the applicant do not show that there are any prospects of success if the time was extended.

10. I understand that the applicant feels the Tribunal hearing was not fair because the decisions on the evidence are different to what she thought they should be.  That, however, does not establish an error of law.  In my view the prospects of success are not made out.  It follows then that the application for extension of time must be refused.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Associate:

Dated:        28 February 2007

The Applicant represented herself
Counsel for the Respondents:	K Hopper
Solicitor for the Respondents:	DLA Phillips Fox
Date of Hearing:	20 February 2007
Date of Judgment:	20 February 2007