SZBME v Minister for Immigration and Multicultural and Indigenous Affairs (with Corrigendum dated 11 February 2005) [2004] FCA 1739 (16 December 2004)

SZBME v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1739

SZBME V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1676 OF 2004

TAMBERLIN J
SYDNEY
16 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1676 OF 2004

BETWEEN:	SZBME APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	16 DECEMBER 2004
WHERE MADE:	SYDNEY

Amendment to the Reasons for Judgment of Tamberlin J delivered on 16 December 2004.

Order 3 of the Orders of the Court is amended to read:

SZBME v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1739

SZBME V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1676 OF 2004

TAMBERLIN J
SYDNEY
16 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1676 OF 2004

BETWEEN:	SZBME APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	16 DECEMBER 2004
WHERE MADE:	SYDNEY

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 1676 OF 2004

BETWEEN:	SZBME APPLICANT
AND:	MINISTER FOR IMMIGRATIONA ND MUTLICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	16 DECEMBER 2004
PLACE:	SYDNEY

1 This is an application for an extension of time to file and serve a notice of appeal. The applicant is 39 years of age and arrived in Australia on 3 January 2000. He lodged an application for a protection visa on 20 June 2002, which was refused by a Ministerial delegate on 22 October 2002. The applicant lodged an application for review before the Refugee Review Tribunal ("the Tribunal") on 5 November 2002, and this application was heard on 29 April 2003. The Tribunal’s decision, which was unfavourable to the applicant, was handed down on 27 August 2003. The applicant then applied to the Federal Magistrates Court for judicial review. There was a directions hearing on 17 December 2003, and the hearing before the Federal Magistrate took place on 7 April 2004. The Magistrate gave a detailed judgment on 18 October 2004, and it is in relation to this judgment that the applicant seeks an extension of time to file and serve a notice of appeal.

2 The application is in the order of eight days out of time and the applicant has given an explanation in relation to it. If the substantive notice of appeal were shown to have any substance I would have been disposed to grant the application for an extension of time. However, the respondent ("the Minister") has made submissions in relation to the decision that is the subject of the prospective appeal, and it is pointed out that the grounds relied on are identical with those which were before the Magistrate.

3 The grounds before the Magistrate were first, that the Tribunal failed to make a bona fide attempt to exercise its power and to recognise that the applicant continues to harbour protection fears in respect of persecution in his native country, and that this was an error so significant to be an error of law and jurisdictional error.

4 Second, it was said that the Tribunal was not acting in good faith in making the decision to refuse the applicant a protection visa on 27 August 2003.

5 Third, it was said that the Tribunal disclosed the applicant’s name and date of birth to the public (Senegalese) in Sydney, thereby giving rise to a sur place claim, on the basis that the applicant might be persecuted upon return to Senegal if his identity became known to certain bodies in that country.

6 Fourth, it was said that the Tribunal misunderstood several aspects of the applicant's case, and failed to take into account other important aspects.

7 When the matter came on for hearing before me today the applicant had the assistance of an interpreter and presented his case in some detail. Essentially it consisted of a reference to parts of the Tribunal decision that he said were in error. A number of the errors that he has raised were questions of fact. In respect of other errors I am not persuaded that any error of law has been established.

8 A principal matter of concern to the applicant was the release of his name. He claims that as a result of his name being released he will be harassed if he is returned to Senegal. The Minister, in written submissions, refers to the paragraphs in the Tribunal’s reasons that deal extensively with this claim. I am satisfied with the reasons given by the Tribunal member in relation to this matter, and with respect to the other grounds that have been raised by the applicant I consider that they have been dealt with correctly and in considerable detail in the Magistrate's decision.

9 Accordingly, I am not persuaded that there has been any error of law shown in the judgment of the Magistrate that is sought to be appealed from, and I do not think that this is a case where there is any sufficient argument to be put forward to the effect that there is an error in that judgment. Accordingly I dismiss the application for an extension of time with costs. I further order, pursuant to Order 62 Rule 4 of the Federal Court Rules, that the amount of costs be assessed at $2000.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

The Applicant appeared in person withy the assistance of an interpreter.

Solicitor for the Respondent:	Sparke Helmore

Date of Hearing:	16 December 2004

Date of Judgment:	16 December 2004

Federal Court of Australia

SZBME v Minister for Immigration and Multicultural and Indigenous Affairs (with Corrigendum dated 11 February 2005) [2004] FCA 1739 (16 December 2004)