SZIWC and Another v Minister for Immigration and Citizenship and Another [2007] FCA 109

FEDERAL COURT OF AUSTRALIA

SZIWC and Another v Minister for Immigration and Citizenship and Another [2007] FCA 109 SZIWC AND SZIWD v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 1765 OF 2006

COWDROY J

14 FEBRUARY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1765 OF 2006

BETWEEN: SZIWC

First Applicant

SZIWD

Second Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: COWDROY J DATE OF ORDER: 14 FEBRUARY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time to file a Notice of Appeal pursuant to Order 52 Rule 15(1) of the Federal Court Rules from the decision of Driver FM delivered on 21 August 2006 be dismissed. 2. The applicants pay the costs of the first respondent in the sum of $2500. 3. The name of the first respondent be changed to 'Minister for Immigration and Citizenship'. 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 1765 OF 2006

BETWEEN: SZIWC

First Applicant

SZIWD

Second Applicant

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: COWDROY J

DATE: 14 FEBRUARY 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application pursuant Order 52 Rule 15(1) of the Federal Court Rules ('the Rules') for extension of time to file and serve a Notice of Appeal from a decision of Driver FM delivered on 21 August 2006. The application before Driver FM sought judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') dated 31 March 2006 and handed down 20 April 2006. 2 Since Driver FM determined the proceedings pursuant to Rule 44.12 of the Rules of the Federal Magistrates Court, his determination is interlocutory. Accordingly leave is required to appeal to this Court from his Honour's decision pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) in addition to the application for an extension of time. The applicant has not sought such leave. 3 The husband and wife applicants are citizens of India and arrived in Australia on 17 November 2005. They lodged an application for a Protection visa with the Department for Immigration and Multicultural Affairs ('the Department') on 14 December 2005. Only the applicant husband (hereafter 'the applicant') made claims under the Convention relating to the Status of Refugees ('the Convention') with the applicant wife relying on membership of his family unit. 4 In his application for a Protection visa the applicant claimed to suffer economic hardship in his home town of Gujarat as a result of failure to repay debts. It was at the hearing before the Tribunal that the applicant claimed that he had only became aware that his political claims were omitted from his Protection Visa Application and that he had been a low-level organiser for the Bharatiya Janata Party ('the BJP') in India. The applicant claimed that as a result of his political involvement he was harassed, threatened and detained twice by local police who attempted to enlist the applicant to the Congress Party (India) (CPI). The applicant claimed that the collapse of his business was linked to harassment from the CPI and the police. The applicant claimed that he feared CPI activists if he was to return to India. 5 The Minister refused the application for a Protection visa on 18 January 2006. The applicant applied for a review of that decision on 15 February 2006 and on 22 February 2006 he was invited to attend a hearing. The applicant attended and was assisted by a Gujarati interpreter. On 22 March 2006 the applicant was sent a letter pursuant to s 424A of the Migration Act 1958 (Cth) ('the Act').