SZJZG v Minister for Immigration and Citizenship

[2008] FCA 1349

FEDERAL COURT OF AUSTRALIA

SZJZG v Minister for Immigration and Citizenship [2008] FCA 1349

SZJZG and SZJZH v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 811 OF 2008

GRAHAM J
13 AUGUST 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 811 OF 2008

BETWEEN:

SZJZG
First Applicant

SZJZH
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE OF ORDER:	13 AUGUST 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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

2.The applicant pay the respondent Minister’s costs fixed in the agreed amount of $1,000.00.

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	NSD 811 OF 2008

BETWEEN:

SZJZG
First Applicant

SZJZH
Second Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GRAHAM J
DATE:	13 AUGUST 2008
PLACE:	SYDNEY

1. The matter presently before the Court is an Application for an extension of time to file and serve a Notice of Appeal from a judgment of Lloyd-Jones FM given on 4 December 2007. 

2. The first applicant and his wife, who is identified as SZJZH, arrived in Australia on 26 April 2006.  On 5 June 2006 the first applicant, who is identified for the purpose of these proceedings as SZJZG, applied for a Protection (Class XA) visa.  In that application his wife was nominated as a person who sought a protection visa as a non-citizen in Australia who was the spouse of SZJZG.

3. The Minister’s delegate refused the application for a Protection (Class XA) visa, whereupon the applicants applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the Minister’s delegate’s decision.  The Tribunal affirmed the decision of the Minister’s delegate. 

4. Thereupon the applicants sought constitutional writ relief in the Federal Magistrates Court of Australia in respect of the decision of the Tribunal.  On 4 December 2007, Lloyd-Jones FM ordered that the application for review of the Tribunal’s decision, which had been filed on 4 January 2007, be dismissed and that the applicants pay the respondent Minister’s costs and disbursements of and incidental to the Application.

5. When the matter was before the Federal Magistrates Court on 17 September 2007, SZJZG appeared in person.  His wife did not appear.  In his reasons for judgment (see SZJZG & Anor v Minister for Immigration & Anor [2007] FMCA 2018) the learned Federal Magistrate said at [19]:

   ‘19.The applicants in these proceedings are self-represented litigants and were assisted at the hearing by a qualified Gujarati interpreter.  I acknowledge the difficulties that applicants in this position face and the limited assistance available to them.  However, the assistance offered to them in preparation of this matter was not pursued, resulting in the claims in the application being nothing more than simplistic and formulaic statements about judicial review.  The applicant wife failed to attend the Court hearing and the applicant husband made only one brief comment claiming that he did not have sufficient time to obtain further documents from India.  …’

6. In relation to the Application presently before this Court, the first applicant, SZJZG, has appeared but his wife has not.  When asked to explain his delay in taking an initiative in respect of the learned Federal Magistrate’s decision, SZJZG informed the Court from the bar table that he was not aware of the rules in relation to timing. 

7. The Application for an extension of time was supported by an affidavit sworn by SZJZG on 2 June 2008 or thereabouts, in which he indicated that after he became aware of the outcome of the decision in the Federal Magistrates Court he ‘got mentally distressed and upset’.  He said that he couldn’t take any initiative about his case and didn’t know what steps he should take.

8. After taking advice from a friend, he apparently applied to the Minister for the exercise, under s 417 of the Migration Act 1958 (Cth), of the Minister’s discretion to provide the applicants with a decision more favourable to the applicants than that provided by the Tribunal. It is apparent that that Application was made before 25 January 2008. Ultimately it was rejected by the Minister, the relevant communication to SZJZG having been given on or about 21 May 2008. It was only at this stage that the Application for an extension of time was instituted.

9. The draft Notice of Appeal was devoid of content.  When asked to address the Court on the errors said to have been made by the learned Federal Magistrate in deciding the matter as he did, the response of SZJZG was, ‘I don’t know’. 

10. It is clear that this is not a case where special reasons have been established which would justify an extension of time to file and serve a Notice of Appeal from the decision of the learned Federal Magistrate.  The Application should be dismissed.

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

Associate:

Dated:        2 September 2008

The First Applicant appeared in person.
The Second Applicant sis not appear.
Solicitor for the First Respondent:	D J Watson of the Australian Government Solicitor
The Second Respondent filed a submitting appearance.

Date of Hearing:	13 August 2008
Date of Judgment:	13 August 2008