SZAGV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 73 (3 February 2004)

SZAGV & ANOR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 2355 of 2003

WILCOX J
3 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2355 of 2003

BETWEEN:	SZAGV & ANOR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	3 FEBRUARY 2004
WHERE MADE:	SYDNEY

1. The application for extension of time to file and serve a notice of appeal be dismissed.

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	N 2355 of 2003

BETWEEN:	SZAGV & ANOR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	3 FEBRUARY 2004
PLACE:	SYDNEY

1 This is an application for extension of time in which to appeal against a decision of Federal Magistrate Raphael given on 30 October 2003. The application for extension of time was filed on 11 December 2003, some six weeks after the Magistrate's decision. Any Notice of Appeal should have been filed within 21 days of the decision. The applicants are a Bangladeshi woman (‘the applicant’) and her infant son. The applicant appeared today to present her application assisted by an interpreter in Bengali.

2 The applicant explains the delay by saying she thought the time for an appeal did not commence until she received the Magistrate's reasons in writing. Apparently, the Magistrate gave an oral judgement on 30 October 2003 and issued certified reasons on 19 November 2003.

3 Having regard to the explanation, I would not refuse the application simply on the basis of delay. However, it would be wrong to extend time without some basis for believing an appeal had a prospect of success.

4 In his judgment, the Magistrate carefully analysed the decision of the Refugee Review Tribunal (‘the Tribunal’) which was sought to be set aside. The Magistrate made observations about the lack of emphasis, in the Tribunal’s reasons, of some aspects of the evidence given by the applicant before it. However, for reasons which he gave, the Magistrate did not think this affected the Tribunal's ultimate decision.

5 I have read the Tribunal’s reasons. I note the Tribunal member was prepared to accept that the applicant and her husband were members of the Freedom Party in Bangladesh, that the applicant's husband was murdered in 1995, that the applicant brought charges against those she considered responsible for his murder, and that she was physically attacked in 2000 because she refused to withdraw those charges. In other words, the Tribunal accepted major factual elements of the applicant's case. However, the Tribunal was not prepared to accept that the applicant had a well founded fear of persecution for a Convention reason. In the view of the Tribunal, the 2000 attack on the applicant was related to the fact that she did not withdraw the charges against those she alleged had murdered her husband, rather than her membership of the Freedom Party.

6 The applicant has made clear to me that she strenuously disputes this conclusion. However, the difficulty she faces is that this is a conclusion of fact. As I pointed out to her, this Court has no jurisdiction to review the Tribunal's findings of fact; nor did the Magistrate have any such jurisdiction.

7 The Tribunal noted that the applicant left Bangladesh and went to the United Kingdom in 2000, that she then returned to Bangladesh and subsequently came to Australia. The Tribunal thought this indicated lack of a genuine subjective fear of persecution. The applicant also criticised this conclusion by the Tribunal; she had given evidence that she had to return to Bangladesh because she had no money.

8 I understand the applicant’s criticism of the Tribunal’s conclusion. However, it also concerns a factual matter.

9 The Magistrate was unable to identify any error of law or procedure. Similarly, I have not been able to find any jurisdictional error. The case the applicant seeks to make is essentially a challenge to the Tribunal’s factual findings. Her criticisms of the Tribunal's findings of fact may or may not be justified. Even if they are justified, they furnish no basis for the Court overturning the Tribunal's decision.

10 I have some sympathy for the applicant's position. On the findings made by the Tribunal, she has been the victim of a savage attack. I can understand her apprehension about the possibility of a further attack if she is returned to Bangladesh. The Minister might be prepared to take into account these circumstances in deciding to exercise the power given to her under s 417 of the Migration Act 1958 (Cth); but I do not think there is any basis on which the Court can intervene. I see no prospect of an appeal succeeding. Accordingly, it would be an incorrect exercise of my discretion to extend time to appeal against the Magistrate's decision.

11 The order that I make is that the application for extension of time to file and serve a notice of appeal be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

The Applicant appeared in person.

Solicitor for the Respondent:	Blake Dawson Waldron

Date of Hearing:	3 February 2004

Date of Judgment:	3 February 2004

Federal Court of Australia

SZAGV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 73 (3 February 2004)