SZATQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1796

FEDERAL COURT OF AUSTRALIA

SZATQ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1796 SZATQ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS NSD 1540 OF 2004 EMMETT J 9 DECEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD1540 OF 2004

BETWEEN: SZATQ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE OF ORDER: 9 DECEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The notice of appeal filed on 21 October 2004 be dismissed as incompetent. 2. The appellant pay the 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 NSD1540 OF 2004

BETWEEN: SZATQ

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: EMMETT J

DATE: 9 DECEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant is a citizen of the People's Republic of China. She arrived in Australia on 21 August 2001 and on 14 September 2001 lodged an application for a Protection (Class XA) visa under the Migration Act 1958 (Cth) ('the Act'). On 13 December 2001 a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister'), refused to grant a protection visa. On 9 January 2002 the appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of the delegate's decision. On 28 April 2003 the Tribunal affirmed the decision not to grant a protection visa. 2 On 16 June 2003 the appellant filed an application for an order of review in the Federal Magistrates Court of Australia. That application was lodged in time because the reasons of the Tribunal were not published until 20 May 2003. 3 The matter was heard by the Federal Magistrates Court on 1 September 2004. After the hearing, the Federal Magistrates Court gave leave to the appellant to file an amended application for an order of review. An amended application was subsequently filed on 8 September 2004. On 24 September 2004 the Federal Magistrates Court ordered that the application be dismissed with costs. 4 On 21 October 2004 the appellant filed a notice of appeal to this Court. On 24 November 2004 the Minister filed notice of objection to competency on the basis that the notice of appeal was not filed within 21 days after the judgment of the Federal Magistrates Court was pronounced. On 1 December 2004 the Chief Justice determined that any appeal in the matter be heard and determined by a single judge. 5 The first question is whether, although no formal application has been made, I should extend the time within which to lodge the notice of appeal. That question involves a consideration of whether there is an explanation for the delay and whether there are any merits in the appeal itself. The appellant has filed an affidavit, sworn 2 November 2004, in which she stated that, in order to seek legal assistance, she asked a friend to provide her documents to a solicitor's agency. She does not understand English and relied on her friend to make any arrangements. She says that her friend did not send back the relevant documents until 19 October 2004 and she could therefore not file a notice of appeal in time. In the absence of cross-examination on the affidavit, I accept, for the purposes of this proceeding, the terms of the affidavit at face value. However, I should observe that, in the course of argument, the appellant responded to questions from me that cast some doubt on whether she understood the nature of the contents of the affidavit. 6 The appellant's original application for an order of review identified no ground that would constitute jurisdictional error and consequently take the decision of the Tribunal outside the definition in s 474(2) of the Act of a privative clause decision. Instead, the application narrates the substantive grounds upon which the apellant claimed to be entitled to a protection visa. 7 It appears that in the course of argument the appellant complained to the Federal Magistrate that she had not been given a fair opportunity to provide complete oral evidence. The amended application raises two grounds: (1) an error of law constituting a jurisdictional error; and (2) a procedural error constituting an absence of natural justice.