SZLYY v Minister for Immigration and Citizenship

[2008] FCA 1824

FEDERAL COURT OF AUSTRALIA

SZLYY v Minister for Immigration and Citizenship [2008] FCA 1824

SZLYY, SZLYZ, SZLZA, SZLZB, SZLZC and SZLZD v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1340 OF 2008

MOORE J
14 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1340 OF 2008

BETWEEN:

SZLYY
First Applicant

SZLYZ
Second Applicant

SZLZA
Third Applicant

SZLZB
Fourth Applicant

SZLZC
Fifth Applicant

SZLZD
Sixth Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE OF ORDER:	14 NOVEMBER 2008
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 with costs, fixed in the sum of $1,500.

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 1340 OF 2008

BETWEEN:

SZLYY
First Applicant

SZLYZ
Second Applicant

SZLZA
Third Applicant

SZLZB
Fourth Applicant

SZLZC
Fifth Applicant

SZLZD
Sixth Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MOORE J
DATE:	14 NOVEMBER 2008
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 against the judgment of a Federal Magistrate of 13 July 2008: SZLYY & Ors v Minister for Immigration & Anor [2008] FMCA 1121. The Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal of 18 December 2007. The applicant is a national of India and claimed that were he to return to India, he would be targeted by local Hindus, who would expose him to a risk of harm of the type contemplated by the Refugees Convention.

2. In his application before the Federal Magistrates Court, the applicant identified as grounds, issues of fact, and in effect was challenging various findings of fact made by the Tribunal.  Similarly, in his notice of appeal, the applicant specifies, as grounds, matters of fact concerning both his father’s circumstances in India, the sequence of events in relation to the expiry of a student visa, his subsequent application for a protection visa and, finally, the strong risk of him being harmed by local Hindus were he to return to India.  This is plainly only a challenge to the findings of fact made by the Tribunal.  The applicant, in substance, is seeking merits review. 

3. No error on the part of the Federal Magistrate is pointed to by the applicants.  In the circumstances, it seems to me that any appeal is doomed to fail and in those circumstances it is inappropriate to extend time in which to file and serve a notice of appeal.

4. Accordingly, I order that the application for an extension of time in which to file and serve a notice of appeal be dismissed with costs, fixed in the sum of $1,500.  

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:        1 December 2008

The Applicants appeared in person.
Solicitor for the Respondents:	Clayton Utz

Date of Hearing:	14 November 2008
Date of Judgment:	14 November 2008