SZFEP v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 439 (13 April 2006)

Last Updated: 27 April 2006

FEDERAL COURT OF AUSTRALIA

SZFEP v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 439

SZFEP V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 596 OF 2006

BENNETT J
13 APRIL 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 596 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFEP APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	BENNETT J
DATE OF ORDER:	13 APRIL 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time is refused.
2. The applicant pay the first respondent's costs.

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 596 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZFEP APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	BENNETT J
DATE:	13 APRIL 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant has filed an application for an extension of time in which to file and serve a notice of appeal from a decision of Driver FM of 11 November 2005. His Honour’s decision relates to a decision of the Tribunal of 6 March 2002 which was handed down on 28 March 2002.

2 The applicant had previously filed an application for judicial review of that Tribunal decision but discontinued that application. On 6 May 2005 he filed a further application for review of the same Tribunal decision. No particulars were included and the Minister sought to have the application dismissed. Driver FM dismissed the application.

3 The applicant had not attended the Tribunal hearing. There is no suggestion that there was any inadequacy in the notification of the hearing date. The applicant has appeared before me today, assisted by an interpreter. I note that he has some fluency in English. He said to me today that there was a problem with his lawyer, but that is not in evidence before me. Nor does that, of itself, affect the Tribunal's processes.

4 The Tribunal refers in its reasons to some matters from the applicant's visa application and sets them out. However, in its findings the Tribunal says:

‘Overall, in view of the lack of detail contained in the applicant's claims, the Tribunal cannot make findings of fact in relation to the applicant's claims. The Tribunal is unable to be satisfied that the applicant has been persecuted for a Convention reason in the past, or that there is a real chance that he would be persecuted for a Convention reason in the reasonably foreseeable future. The Tribunal, therefore, cannot be satisfied that the applicant has a well-founded fear of persecution for a Convention reason.’

5 The application in this Court, annexes an affidavit sworn 22 March 2006. The affidavit raises factual matters, consideration of which would amount to merits review of the Tribunal's decision. The affidavit annexes a draft notice of appeal which alleges jurisdictional error on the part of the Tribunal. The grounds of appeal refer to an alleged failure on the part of the Tribunal to take into consideration ‘the ground realities in a country like Pakistan.’ The draft notice of appeal also asserts that country information was totally biased in favour of the Government and far from reality. These are factual matters that do not found jurisdictional error.

6 The applicant was informed that the matter was listed for hearing today. He has said that he had understood that the listing was only to set a hearing date. The notification from the Court, however, makes it clear that the listing was for hearing.

7 No reason is given for the fact that this application is made out of time, other than the applicant saying that he is not a lawyer and that he was not aware of any time constraints. Even if I were to accept that as a sufficient reason, I cannot see that there are any prospects of success in the appeal itself.

8 The Tribunal made no findings of fact. The Tribunal noted the defects in the information before it, which prevented the Tribunal from coming to any decision. Accordingly, I do not see that there is any jurisdictional error on the part of the Tribunal in identifying those defects (VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24]). Nothing in the recent decision of SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs (2006) FCAFC 2 suggests that in the circumstances of this case, there was jurisdictional error on the part of the Tribunal in relation to section 424A of the Act.

9 Accordingly, the application for an extension of time is refused, with costs.

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

Associate:

Dated: 13 April 2006

The Applicant appeared in person assisted by an interpreter.

Solicitor for the Respondent:	J Bird, Phillips Fox
Date of Hearing:	13 April 2006
Date of Judgment:	13 April 2006