SZCCN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 166 (2 March 2005)

Last Updated: 11 March 2005

FEDERAL COURT OF AUSTRALIA

SZCCN v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 166

SZCCN & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N59 OF 2005


STONE J
2 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N59 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCCN FIRST APPLICANT SZCCO SECOND APPLICANT SZCCP THIRD APPLICANT SZCCQ FOURTH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	2 MARCH 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The first and second applicants pay the respondent’s costs in the amount of $950.

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	N59 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCCN APPLICANT SZCCO SECOND APPLICANT SZCCP THIRD APPLICANT SZCCQ FOURTH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	2 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for an extension of time within which to file and serve an application for leave to appeal from the decision of a Federal Magistrate handed down on 25 October 2004. The Federal Magistrate dismissed a motion for reinstatement of an application for judicial review of a decision of the Refugee Review Tribunal (‘Tribunal’) made on 22 September 2003 and handed down on 15 October 2003. The proceedings in the Federal Magistrates Court were conducted by the first applicant, apparently on behalf of all of the applicants and like the Federal Magistrate, I will refer to him as ‘the applicant’.

2 The applicant has filed in this Court an application headed, ‘Application for leave to appeal’. In addition to seeking leave to appeal, the applicant has also applied for an order that the time limits for seeking such leave be dispensed with. The applicant filed his application in this Court on 20 December 2004, a little over one month out of time. In the circumstances, it seems to me that it is appropriate to treat this as an application for an extension of time to file and serve an application for leave to appeal.

3 The applicant filed an application for judicial review on 8 December 2003. The application was given a return date of 5 May 2004 at 2.15 pm. The applicant failed to appear and the hearing was adjourned to 19 May 2004. The applicant once again failed to appear and Registrar Hedge dismissed the application for default of appearance.

4 On 19 July 2004, the applicant filed a new address for service. He also filed, on 21 July 2004, a notice of motion with an accompanying affidavit seeking reinstatement of the application for judicial review. It is the decision of the Federal Magistrate in respect of this notice of motion from which the applicant seeks leave to appeal.

5 The notice of motion was considered at a hearing on 25 October 2004 before Driver FM. The applicant gave oral evidence claiming that he was not aware of the hearings of 5 May 2004 and 19 May 2004. The applicant also stated that although he filed a change of address for service on 19 July 2004, he had changed address some time before this date. The Federal Magistrate set out the applicant’s claims and at paragraphs [3] to [6] stated:

"Although the applicant only notified a change of address for service on 19 July 2004 he said that he in fact changed his address some considerable time previously. Initially, he gave evidence that he moved 12 to 14 months ago. However, when I pointed out to him that he was using his old address for service on the judicial review application he said that he must have moved after that. I received into evidence correspondence sent from the Court by letter dated 18 November 2003 (exhibit C1). The applicant told me that he had telephoned the Court and advised of his new address by that stage.

When I showed the applicant correspondence from the Court addressed to his old address he said that the envelope enclosing the correspondence (which is not in evidence) had been sent to the new address. I also showed the applicant the additional information he sent to the Court apparently in response to that correspondence (exhibit C2). When I pointed out to the applicant that he was, in that letter, still using his old address he said that he must have made a mistake. I find that the applicant’s evidence as to when he changed his address lacks credibility. Either the applicant changed addresses after his judicial review application was filed on 8 December 2003 or he was at least careless and possibly deceptive in using an out of date address for service.

It does appear that the initial attempt by the applicant to file his judicial review application was unsuccessful and he needed to provide more information. I reject his evidence that he never saw the application in the form it was filed on 8 December 2003 with the return date of 5 May 2004. The application was served on the Minister. I reject the applicant’s contention that the application was filed and served without him seeing it. The applicant was not represented by anyone. I find that the applicant was aware that the return date of the application was 2.15 pm on 5 May 2004. I reject his evidence to the contrary.

It is unclear whether the applicant was aware of the adjourned directions date on 19 May 2004. I note, however, that correspondence sent to the applicant at the address for service given by him was not returned. I find that the registrar properly dismissed the application for non-appearance on 19 May 2004."

6 The Federal Magistrate went on to hold that, irrespective of whether the applicant was aware of the hearing dates, the application for judicial review contained no cause of action. The application for judicial review was said by the Federal Magistrate to attack the merits of the Tribunal’s decision. This application did not disclose matters with which either the Federal Magistrates Court or this Court can interfere. As a consequence, the Federal Magistrate held that it would be futile to reinstate the application and dismissed the applicant’s motion on 5 November 2004.

7 In the present circumstances, the delay in filing the application for leave to appeal is relatively short and the applicant, who it would appear has no legal training, was evidently unaware of the applicable time limits. Nevertheless, even if I accept that valid and legitimate reasons exist for the delay, the application for an extension of time must still be refused if the appeal would have no or very slight prospects of success: see Gallo v Dawson (No 2) [1992] HCA 44; (1992) 109 ALR 319; Deighton v Telstra Corp (unreported, Lee, Heerey and Nicholson JJ, 17 October 1997); Kalaba v The Queen (unreported, Finn J, 13 September 1996); and Engler v Commissioner of Taxation [2002] FCA 620 per Nicholson J at [12].

8 The applicant has not satisfied me that there is sufficient doubt as to the correctness of the Federal Magistrate’s decision to warrant the case being considered by the Full Court. The applicant’s affidavit filed with the present application essentially asserts the same grounds as were soundly rejected by the Federal Magistrate. No error has been demonstrated in this respect. In addition, the draft notice of appeal contains no discernable ground of appeal beyond that already outlined. There is no substantial injustice in refusing to grant an extension of time or leave to appeal.

9 Having regard to the Tribunal’s reasons, in particular its clear findings of fact based on independent country information, and the judgment of the Federal Magistrate, the extension of time must be refused and the application dismissed. In my view the application, if an extension of time were granted, would stand no chance of success. There would be no purpose served by granting an extension of time in which to file an application for leave to appeal.

10 I therefore order that the application is dismissed. I further order that the first and second applicants pay the respondent’s costs.

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

Associate:

Dated: 2 March 2005

Counsel for the Applicants:	The first applicant appeared for the applicants
Solicitors for the Respondent:	Sparke Helmore
Date of Hearing:	2 March 2005
Date of Judgment:	2 March 2005