SZIZF v Minister for Immigration and Citizenship

[2007] FCA 617

FEDERAL COURT OF AUSTRALIA

SZIZF v Minister for Immigration and Citizenship [2007] FCA 617

SZIZF v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 646 OF 2007

ALLSOP J
30 APRIL 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 646 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIZF
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE OF ORDER:	30 APRIL 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Time be extended for the file and serving of a notice of appeal up to and including 30 April 2007.

2.The draft notice of appeal annexed to the affidavit of the applicant sworn 12 April 2007 stand without further step as a notice of appeal filed on 30 April 2007.

3.Any amended notice of appeal to be filed and served by 30 June 2007.

4.The application be stood over to before the Full Court Appeals Unit for any further directions.

5.The Minister’s costs of the application be costs in the appeal.

THE COURT DIRECTS:

6.That the Registrar under Order 80 under the Federal Court Rules to approach the NSW Bar Association for assistance in arguing the appeal and drafting any amended notice of appeal.

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 646 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIZF
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	ALLSOP J
DATE:	30 APRIL 2007
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 orders made by the Federal Magistrates Court on 17 January 2007.  The matter before the Federal Magistrates Court was a judicial review proceeding of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 8 May, 2006 in which the applicant sought review of a refusal of a delegate to give a protection visa.  The notice of appeal against the orders of the Federal Magistrates Court was some 9 weeks out of time.  The applicant’s explanation for that delay was that he was taken into immigration detention.  That, in my view, is a less than entirely satisfactory explanation.  Nevertheless, looking at the submissions of the first respondent, the substantial opposition to the application is based on the asserted lack of merit.

2. I am reluctant to refuse the application on a question of delay without understanding much more about the adequacy or lack of adequacy of procedures at the detention centre.  Little evidence has been put on by the applicant about delay and if the issue were not of the character to which I will now direct myself, the lack of explanation of delay would be such that I might refuse the application.  The draft notice of appeal attached to the affidavit of the applicant sworn on 12 April 2007 is in general terms and identifies the following grounds of appeal :

   1.Procedures that were required by law to be observed in connection with the making of the Decision were not observed;

   2.A breach of the rules of natural justice occurred in connection with the making of the Decision;

   3.Particulars and Grounds:

   (1)     As a matter of fact, the Tribunal and DIAC have apparently failed to give me the important information, comletedly [sic] and clearly, before during or after the hearing, which have been used as the reason or part of the reason, for affirming the decision that is under review;

   (2)     The Tribunal and DIAC have, particularly, failed to ensure me, during and after the hearing, to well understand why the information, normally called as “Independent Country Information “ (ICI), is relevant to the review;

   (3)     I believe that the Tribunal should provide me a complete ICI or the particular information which it is because of the reason mentioned above that it is impossible for me to have a fair chance to comment on the ICI before or after the hearing;

   (4)     Would be the reason or part of the reason, for affirming the decision that is under review, by one of the methods specified ins 441A of the Act before the hearing, so that I could make any comments on the information before hearing in writing;

   (5)     Tribunal did not fully consider the information I provided.  The information should be regarded as the strong evidence in support of my claims.

   (6)     In summary, I never ever believe that the Tribunal has complied with its obligations particularly under s 424A of the Act. As a result, RRT has not followed the legal procedure when they consider my application.

3. As is illustrated by the clear and comprehensive reasons of the Federal Magistrate the only real issue in this case is whether or not s 424A of the Migration Act 1958 (Cth) was complied with. It is unnecessary to rehearse the difficulty that this section can cause in application. I have considered the reasons of the Federal Magistrate and, if I may say so, respectfully there is much to commend their correctness.

4. However, in particular in relation to the second possible argument as to the application of s 424A, I think that there is at least an argument that could be put as to the operation of s 424A. For this reason, notwithstanding the lack of satisfactory explanation of the delay beyond incarceration at the detention centre, I am concerned that there may be an arguable basis for the application of s 424A and I do not think that should go by default because of delay in filing the notice of appeal. For there to be any utility in the appeal I think an Order 80 order should be made, because I do not think with all respect to him, the applicant is able to advance the matter since he has not done so on the notice of appeal. I will make orders as follows:

   1.Time be extended for the file and serving of a notice of appeal up to and including 30 April 2007.

   2.The draft notice of appeal annexed to the affidavit of the applicant sworn 12 April 2007 stand without further step as a notice of appeal filed on 30 April 2007.

   3.Any amended notice of appeal to be filed and served by 30 June 2007.

   4.The application be stood over to before the Full Court Appeals Unit for any further directions.

   5.The Minister’s costs of the application be costs in the appeal.

5. And I will make a direction:

   6.That the Registrar under Order 80 under the Federal Court Rules to approach the NSW Bar Association for assistance in arguing the appeal and drafting any amended notice of appeal.

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

Associate:
Dated:        8 May 2007

The Applicant appeared in person with the assistance of an interpreter.
Counsel for the Respondent:	Ms G Broderick
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	30 April 2007
Date of Judgment:	30 April 2007