SZHIH v Minister for Immigration & Citizenship [2007] FCA 1263

FEDERAL COURT OF AUSTRALIA

SZHIH v Minister for Immigration & Citizenship [2007] FCA 1263

SZHIH v MINISTER FOR IMMIGRATION & CITIZENSHIP AND ANOR NSD841 OF 2007

EMMETT J

7 AUGUST 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD841 OF 2007

BETWEEN: SZHIH

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE OF ORDER: 7 AUGUST 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed. 2. The applicant pay the first respondent's costs in the sum of $1,200. 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 NSD841 OF 2007

BETWEEN: SZHIH

Applicant

AND: MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: EMMETT J

DATE: 7 AUGUST 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant is a citizen of South Korea, who arrived in Australia on 12 December 2004. On 27 January 2005 he lodged an application for a protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act). On 12 March 2005, a delegate of the first respondent, the Minister for Immigration and Citizenship (the Minister), refused to grant a protection visa. On 18 April 2005 the applicant applied to the second respondent, the Refugee Review Tribunal (the Tribunal), for a review of the delegate's decision. On 30 August 2005, the Tribunal affirmed the decision not to grant a protection visa. The applicant was notified of that decision on 20 September 2005. 2 The applicant then commenced a proceeding in the Federal Magistrates Court of Australia on 13 October 2005 seeking judicial review of the Tribunal's decision. On 26 February 2007 the Federal Magistrates Court ordered that the application be dismissed, with costs. On 14 May 2007 the applicant filed, in this Court, an application for an extension of time within which to file a notice of appeal from the orders of the Federal Magistrates Court. 3 When the matter was called on for hearing this morning, there was no appearance for the applicant. I have seen evidence that he was notified of the fixture for hearing today. 4 The basis upon which an extension of time is sought appears in an affidavit of the applicant sworn on 11 May 2007 and filed on 14 May 2007, in which he says that he made his appeal application after he received "the judgement letter [sic]". He said that before he received his "judgement letter [sic]" he did not know on what ground he should appeal to the Federal Court. 5 The reasons of the Federal Magistrates Court were delivered ex tempore by Raphael FM. The grounds of the application to that Court were that the applicant was not offered an opportunity to appear before the Tribunal to provide further information. He said that he expressed his interest in attending a hearing but "unfortunately something happened suddenly on that day which made [him] unable to attend [sic]". 6 The primary judge observed that no evidence was provided that the applicant had contacted the Tribunal, which made its decision the day after the day fixed for hearing. His Honour also observed that, in the proceeding before the Federal Magistrates Court, the applicant did not arrive in court until half an hour after the time fixed for the hearing of the proceeding. This history of the applicant's litigation suggests that he has no bona fide interest in pursuing any judicial review of the delegate's decision. In all of the circumstances I consider it is appropriate to refuse any application for an extension of time and that the proceeding be dismissed. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.