SZNKS v Minister for Immigration and Citizenship
[2009] FCA 1321
•6 NOVEMBER 2009
FEDERAL COURT OF AUSTRALIA
SZNKS v Minister for Immigration and Citizenship [2009] FCA 1321
SZNKS v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 901 of 2009
LINDGREN J
6 NOVEMBER 2009
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 901 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNKS
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LINDGREN J
DATE OF ORDER:
6 NOVEMBER 2009
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The application for an extension of time be dismissed.
2. The applicant pay the first respondent’s costs of the application.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 901 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZNKS
ApplicantAND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
LINDGREN J
DATE:
6 NOVEMBER 2009
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant seeks an extension of time in which to file and serve a notice of appeal from the judgment of the Federal Magistrates Court of Australia given on 15 July 2009: see SZNKS v Minister for Immigration & Anor [2009] FMCA 718.
The second respondent filed a submitting appearance.
Under O 52 r 15 of the Federal Court Rules, the applicant had 21 days in which to file and serve her notice of appeal. That allowed her until 5 August 2009. On 21 August 2009 she filed the present application for an extension of time.
In her form of application for the extension of time, the applicant referred to the grounds of the application as being stated in an “attached affidavit.” An affidavit by the applicant dated and filed on 21 August 2009, states (solecisms included):
1.I am an Indian Citizen by birth and came to Australia and applied for protection visa under the determination of Refugee status in Australia.
2.The Delegate of the minister for Immigration and Citizenship refused to grant my protection visa. I applied for review at Refugee Review Tribunal, but the member of the Tribunal affirmed the delegate decision.
3.I filed Judicial review application before the Federal Magistrate. Honourable FM did not consider my application. I am not satisfied with the order. I was unrepresented, no barrister or solicitor assisted me and I was not aware of the time limit for the appeal.
4.I require extension of time and serve notice of appeal against the Federal Magistrate order.
Although it was not referred to in the affidavit, a draft notice of appeal was annexed to the affidavit and set out the following grounds of appeal (solecisms included):
2.The single Judge of the Federal Magistrate Court in his Honours judgment delivered on the 15 July 2009 failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the judiciary Act 1903.
3.The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal.
On 24 August 2009, a Deputy District Registrar made certain directions aimed at progressing the application for extension of time. One of these was that the application be listed for hearing on a date to be fixed during the sitting period 2-27 November 2009 unless the Court should advise that the application would be heard on an earlier date.
On 8 September 2009, the National Appeals Registrar of the Court wrote to the applicant and to the solicitors for the respondents advising that the application would be heard today at 10.15 am at 80 William Street, East Sydney. The letter advised that the courtroom in which the application would be heard would be indicated on the notice board in the foyer on the ground floor of 80 William Street, East Sydney. The letter enclosed, inter alia, a map showing the location of the Court at 80 William Street, East Sydney.
On 27 October 2009, the National Appeals Registrar of the Court wrote to the applicant and the solicitors for the respondents notifying a change in the identity of the judge who would be hearing the matter, but otherwise confirming the hearing fixture.
On 30 October 2009, the solicitors for the first respondent wrote to the applicant enclosing a copy of the first respondent’s submissions. The letter also noted that the application was listed for hearing today at 10.15 am in this Court, at 80 William Street, East Sydney. The letter advised the applicant that if she did not attend, either in person or by legal representative, the solicitors were instructed to seek to have her application dismissed with costs.
The proceeding has been called outside the courtroom and the applicant has not appeared.
Counsel for the first respondent asks that I dismiss the application under s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth) (the FCA Act), on account of the failure of the applicant to attend. This provision, however, refers to the failure of “the appellant” to attend a hearing relating to the “appeal”. That expression is wide enough to include, for example, a failure to attend an interlocutory hearing relating to an appeal, but the person who fails to attend must be a person who falls within the expression “the appellant”. In the present case, there is no “appeal” or “appellant” yet; there is only an applicant for an extension of time in which to appeal.
I note that the Access to Justice (Civil Litigation Reforms) Amendment Bill 2009 contains a proposed amendment to s 25 of the FCA Act that is intended to overcome the present problem. A new subs (2BA) is to be inserted following subs (2B) providing that a reference in subs (2B) to an appeal includes a reference to “an application of the kind mentioned in subsection (2)”. One kind of application mentioned in subs (2) is “an application for an extension of time within which to institute an appeal to the Court”. (In passing, I suggest, with respect, that consideration might be given by those responsible to an amendment of the proposed new subs (2BA) to make it say “of a kind” rather than “of the kind”, and also to address the presence of the word “appellant” in subs (2B)(bb)(ii).) I am informed that the Bill has been passed by the House of Representatives, passed by the Senate with amendments not presently relevant, and referred to the House of Representatives for consideration of the amendments.
In the circumstances I will proceed to hear the application for the extension of time on its merits.
The applicant, not being present, has not read her affidavit to which I referred. The affidavit states that the applicant was not aware of the time limit for the appeal, but does not give any indication of the circumstances in which she became aware of the time limit, as she obviously did by 21 August 2009 when she filed the application for the extension of time.
In my opinion, the two grounds stated in the draft notice of appeal have no prospects of success. I have read the reasons for decision of the Refugee Review Tribunal and of the Federal Magistrates Court. Nothing in the reasons for judgment of the Federal Magistrates Court suggests error of law, jurisdictional error or procedural unfairness, or suggests that his Honour did not give genuine consideration to the reasons for decision of the Refugee Review Tribunal.
Both because the delay is not adequately explained and because an appeal would have no prospects of success, I will dismiss the application for an extension of time with costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated: 13 November 2009
The Applicant did not appear. Counsel for the First Respondent: Mr J P Knackstredt Solicitor for the Respondent: Clayton Utz Date of Hearing: 6 November 2009 Date of Judgment: 6 November 2009
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