FEDERAL COURT OF AUSTRALIA

SZAKK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 702

MIGRATION – application for extension of time to file notice of appeal from Federal Magistrates Court dismissing application for review of decision of Refugee Review Tribunal – application provided no particulars of any arguable ground of appeal – application dismissed

SZAKK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 483 OF 2004

GYLES J

17 MAY 2004

SYDNEY

THE COURT ORDERS THAT:

1.      The motion is dismissed. 

2.      The applicant is to pay the respondent’s costs of the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     In this matter, the applicant applied to the Federal Magistrates Court for review of a decision of the Refugee Review Tribunal.  The decision of the Magistrates Court was given on 11 March this year.  A notice of appeal to this Court was not filed within the allotted time period, and on 7 April 2004 an application for extension of time to file and serve the notice of appeal was filed, supported by an affidavit dated 7 April 2004.

2                     The gist of that affidavit is that the applicant was unaware of the 21-day time limit.  He thought it was a 28-day limit, and was thus led into error.  I am satisfied in all the circumstances that there has been an explanation for delay.

3                     The applicant must, however, show that there is at least an arguable ground of appeal to this Court.  The draft notice of appeal does not contain any particulars of any ground that would enable that to appear.  The grounds set out in the draft notice of appeal are as follows:

‘1.     I am totally disappointed by the dismissal decision of my review application by the Federal Magistrates Court Raphael FM on 11 March 2004 at Sydney Registry. I have submitted to the Federal Magistrate Court that I have serious persecution problem in Bangladesh due to my religion ground.  Furthermore, I am deeply disappointed that the Court ordered me to pay the cost of $4500.00 dollars and therefore would like to challenge the whole of Raphael FM decision as well as the Refugee Review Tribunal decision that has taken place on 13 March 2003.

2.      The Tribunal rejected my claims in a conventional way without any verification.

3.      The Tribunal cited only a part of so many reports and references in deciding my application instead of the whole reports and references.

4.      The Tribunal decision was not with any lawful effect rather it was infected by jurisdictional error.  Such as-

a)    The Tribunal did not comply with the mandatory obligations that contained in section 424A of the migration act.

b)    The Tribunal did not ensure, as far as practicable, or at all, that I understood why all those references and information were relevant to my review application as required by section 424A(1)(b) of the migration act.

c)    The Tribunal did not give me the Particulars of the information or references in the manner required by section 424A(1)(a) and 424(2)(a) of the migration act.

On the Contrary –

1)      Raphael FM failed to remit the matter to the Tribunal for lawful consideration even though the RRT apparently made jurisdictional error in my review application.

2)      Raphael FM, being a higher judicial authority did not consider that I have been deprived of natural justice and also did not remit this matter to the RRT for reconsideration and lawful effect of my application.’

4                     I have asked the applicant several times, both with and without the help of an interpreter, what he can say to support or to elucidate those grounds.  He has been unable to do so.  That may be explicable because of his lack of any legal training, but nonetheless it leaves him in a very difficult position.

5                     The reasons for the judgment of the Federal Magistrates Court are detailed, are in conventional form, and appear to grapple with any potential ground of appeal that might appear from the Tribunal's decision.  The reference to the ‘mandatory obligations’ under s 424A of the Act do not appear to have featured among the matters considered by the learned magistrate, and as the applicant has not addressed them in any way, I do not take any account of them.  It may well be that the applicant has received some informal advice indicating that this ground may prove fruitful these days, but unfortunately for him it has nothing to bite upon in this case. 

6                     I am satisfied that the applicant has not any arguable ground of appeal to this Court, and for that reason the motion is dismissed.  The applicant is to pay the costs of the motion.

Associate:

Dated:              1 June 2004