SZJGG v Minister for Immigration and Multicultural Affairs

[2007] FCA 1355

FEDERAL COURT OF AUSTRALIA

SZJGG v Minister for Immigration and Multicultural Affairs [2007] FCA 1355

SZJGG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD931 OF 2007

SPENDER J
15 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD931 OF 2007

BETWEEN:

SZJGG
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE OF ORDER:	15 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time in which to file and serve a Notice of Appeal be dismissed.

2.        The applicant pay the first respondent’s cost of and incidental to the application, fixed in the sum of $1,400.00.

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	NSD931 OF 2007

BETWEEN:

SZJGG
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	SPENDER J
DATE:	15 AUGUST 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 application is based on the following facts.  The Federal Magistrate’s decision was given on 13 December 2006; the time within which the Notice of Appeal should have been filed was 3 January 2007, however, having regard to the rules in relation to the Christmas break, the Notice of Appeal was required to be filed by 25 January 2007, and the application for leave was in fact filed on 25 May 2007.

3. In this particular application I have written submissions on behalf of the Minister by Clayton Utz, the solicitor for the Minister. 

4. The application for leave will be refused for failure to prosecute that application.

5. It also will be dismissed on the basis that I have considered the material in relation to the application for an extension of time, and I am satisfied, having read the reasons for judgment of Emmett FM of 13 December 2006, that no basis exists on which leave should be granted.

6. The delay involved is unexplained and extensive, being four months in all.  The only explanation for the delay is that the applicant did not receive the Federal Magistrates Court’s decision.  The evidence establishes that her Honour’s reasons for judgment were delivered ex tempore and judgment pronounced in the presence of the applicant. 

7. The failure or the delay in receiving the written copy of the Federal Magistrates Court’s decision is not a special reason why the period in which leave to appeal should be extended.

8. I have also had regard to the three grounds of appeal in the draft Notice of Appeal.  In respect of these they appear to seek merits review. 

9. The first ground refers to the finding by the Refugee Review Tribunal (the Tribunal) that the applicant’s evidence in respect of his involvement in Falun Gong was profoundly unconvincing.  It asserts that the applicant was unable to give any but the most basic explanation for his decision to start practising Falun Gong in 1998.  This, at best, seeks to challenge the finding of fact by the Tribunal.

10. The second ground also seeks merits review of the Tribunal’s decision, and the third ground is argumentative and seeks to contest a finding of fact by the Tribunal.  None of the grounds display any merit warranting the grant of leave.  For that reason also, the application for leave is also dismissed.

11. For these reasons, the proper order is that the application for an extension of time within which to appeal is refused and the application for that extension of time should be dismissed with costs.

12. I order that the applicant pay the costs of the first respondent, which I fix in the sum of $1,400.00.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:       29 August 2007

No appearance by the applicant.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	15 August 2007
Date of Judgment:	15 August 2007