SZCGQ v Minister for Immigration & Multicultural & Indigenous Affairs

'I got medically unfitted for while. That's why I am not able to filed for my case. Kindly reconsider my case.' The witness statement is contained on a typed one page document headed with the title 'NSW Police - Statement of a Witness' and the coat of arms of the NSW Police. It relates to an incident which allegedly occurred early in the hours of the morning of the 21 August 2004 during which the applicant sustained minor head injuries after confronting a number of persons said to be in the process of committing a 'ram raid' of retail premises across the road from his residence.

The Federal Magistrate's decision 5 In determining whether to set aside her earlier order summarily dismissing the applicant's application for review of the Tribunal's decision, the Federal Magistrate identified two relevant factors that influence the discretion. The first was the existence of reasons for non-appearance and whether the appellant can show that by accident, and without fault on his part, that the order was made in circumstances that warrant the exercise of the discretion. The second was whether or not the applicant has an arguable case or whether it would be futile to set aside the orders dismissing the application for review, referring in that regard to a decision of a single judge of this Court in Lee v Minister for Immigration & Multicultural Affairs [2001] FCA 1448 at [4]. 6 The reason given by the applicant for his non-attendance at his original hearing date of 5 April 2005 was the same as that given to me, namely that he was experiencing personal and financial difficulties at the relevant time which prompted him to move to Melbourne causing him to forget about his hearing. Her Honour considered that whilst that explanation was understandable in a personal sense, it did not amount to an explanation that by accident or without fault on the applicant's part he was unable or failed to attend the hearing. The applicant has not been able to persuade me otherwise at today's hearing. 7 Her Honour proceeded to find that there was no arguable case established by the applicant on his application. The Tribunal found that it did not have jurisdiction to conduct a review of the delegate's decision to refuse the applicant a protection visa, since the application for review was lodged outside of the 28-day period stipulated by s 412(1)(b) of the Migration Act 1958 (Cth). No suggestion was made by the applicant that there was an arguable case that the Tribunal failed to calculate the relevant periods correctly or erred in its understanding of the relevant law. The Tribunal has no jurisdiction to enlarge the time within which an application for review can be made: Fernando v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 97 FCR 407 at [31] and [44]. Accordingly, her Honour found that it would be futile to reinstate the applicant's application as it has not been demonstrated that he has any arguable case.

Conclusion 8 The guiding considerations which inform the decision to grant leave to appeal from an interlocutory judgment 'in the general run of cases' were outlined by the Full Federal Court in Décor Corp Pty Ltd v Dart Industries (1991) 33 FCR 397, which adopted the two principles formulated in Neimann v Electronic Industries Ltd [1978] VR 431. Those are first, whether in all the circumstances the interlocutory decision is attended by 'sufficient doubt' to warrant reconsideration by a court on appeal. Secondly, whether substantial injustice would result if leave were refused, supposing the decision to be wrong. It is also helpful to have regard to the reasons for judgment of Hely J in NACA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 659 at [12], in which his Honour said: 'In my view, the decision to which the Federal Magistrate came was the correct decision in all the circumstances. It was incumbent upon the appellant to show that if he wanted the Federal Magistrate to reopen the case that there was some purpose in doing so. In other words he had to show an arguable case that the [Tribunal's] decision should be quashed on the grounds of jurisdictional error. The appellant did not do so.'

9 It is overwhelmingly clear that any appeal from the Federal Magistrate's discretionary decision has no prospects of success. Her Honour's reasons for judgment display detailed consideration of the relevant principles, the claims put forward by the applicant and the reasons for decision of the Tribunal. I am unable to reach any other conclusion than that the application for leave to appeal must be dismissed and the applicant must pay the respondent's costs assessed at $500. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Solicitor for the Respondent: Blake Dawson Waldron