SZIJM v Minister for Immigration and Citizenship [2007] FCA 1209 (1 August 2007)

Last Updated: 14 August 2007

FEDERAL COURT OF AUSTRALIA

SZIJM v Minister for Immigration and Citizenship

[2007] FCA 1209

SZIJM v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL
NSD 530 OF 2007

RARES J
1 AUGUST 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 530 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIJM Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	RARES J
DATE OF ORDER:	1 AUGUST 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time is dismissed with 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 530 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZIJM Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent

JUDGE:	RARES J
DATE:	1 AUGUST 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for an extension of time to file and serve a notice of appeal from the decision in SZIJM v Minister for Immigration [2007] FMCA 350. The history of the matter should be given in order to put this application in context, notwithstanding that the applicant was one day out of time in filing the application for an extension of time. The applicant arrived in Australia on 19 September 2005 and lodged an application for a protection visa on 27 October 2005. The delegate of the Minister refused that application. Shortly thereafter she lodged an application for review with the Refugee Review Tribunal in November 2005.

2 The Tribunal wrote to her on 6 December 2005 inviting her to the hearing which was to be held on 12 January 2006. However, on 22 December 2005 the Tribunal was advised in writing that the applicant did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. Unsurprisingly, the Tribunal adhered to its previous view that it was unable to decide the application in the applicant’s favour because it was not able to satisfy itself as to the substance of her claim. Notwithstanding that, the applicant then applied to the Federal Magistrates Court to review the Tribunal’s decision.

3 Her amended application under the Migration Act 1958 (Cth) raised a number of grounds. She had attended a directions hearing before a registrar of the Federal Magistrates Court on 21 March 2006 at which the matter was set down before that Court for hearing at 2.15 p.m. on 8 March 2007. The applicant did not appear at the hearing. Although attempts were made on that occasion to contact her on the mobile phone number which she had given, she still did not appear. His Honour, exercising his power under Pt 13 r 13.03A(c) of the Federal Magistrates Court Rules 2001 (Cth), dismissed the application in default of her appearance after she had not appeared by 2.30 p.m., her name having been also called outside the Court.

4 On 30 March 2007 the applicant filed in this Court an application for an extension of time to file and serve a notice of appeal. She also filed an affidavit in support of that application. I have had regard to the contents of that affidavit in forming the view I have come to about what I should do in this case. In her affidavit she asserted that she received ‘the documents’ on 23 March 2007. By that I understand her to say that she received a copy of his Honour’s written reasons for judgment which had been delivered orally on 8 March 2007.

5 She then said that she had received a call to her mobile telephone ‘late afternoon on 08/03/2007 which was in English only, not through Mandarin interpreter’. She said in the affidavit that she ‘found’ that the respondent had not served the submissions to her on time and that the Court had not adjourned the hearing. The affidavit was sworn in the English language with no reference to any person translating for the applicant. The explanation which the applicant gave for not attending the Federal Magistrates Court was manifestly inadequate to justify any reason why she had not attended. She did not assert that she was unaware of the hearing. She asserted it was the respondent’s responsibility to file submissions on her and that the Court should somehow have accommodated her when she had made no effort to appear before it.

6 Today the matter has been called outside the Court at the time it was listed for the hearing. The solicitor appearing for the Minister has sought to contact the applicant on her mobile telephone which is not responding. The Court is once again faced with an application by the applicant who has not yet attended at any hearing affecting her rights in relation to her claim for a protection visa, although she has sought to initiate proceedings in this Court to reverse previous results of hearings in which those rights were affected.

7 I am satisfied that this application has no merit whatsoever and that the failure of the applicant to attend is part of what appears to be a pattern of filing applications without any bona fide intention of appearing on them.

8 In my opinion, this application was an abuse of the process of the Court. I would refuse the application for an extension of time with costs.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated: 10 August 2007

Applicant:	No appearance
Solicitor for the Respondent:	F Minzlaff of Blake Dawson Waldron
Date of Hearing:	1 August 2007
Date of Judgment:	1 August 2007