SZEPN v Minister for Immigration and Multicultural Affairs

introduction 1 The appellant is a citizen of Serbia and Montenegro of Albanian Muslim descent. He comes from a village in Preshevo, Serbia. He arrived in Australia in December 2003 and applied for a protection visa in January 2004. 2 The appellant's application for a protection visa was refused by a delegate of the then Minister for Immigration and Multicultural and Indigenous Affairs. This decision was affirmed by the Refugee Review Tribunal. The appellant's application for judicial review of the decision of the Tribunal was dismissed by the Federal Magistrates Court (SZEPN v Minister for Immigration & Anor [2005] FMCA 1664). 3 The Tribunal in its written reasons for decision noted that the appellant claims that he will face harm if he returns to Serbia and Macedonia because he avoided conscription and because he assisted Kosovo refugees flee to Montenegro during the war between Kosovo and Serbia. The appellant does not challenge the Tribunal's conclusion that he would not now face harm in his country of nationality because he avoided conscription. However, he continues to maintain that he will face harm as a Muslim who assisted Kosovo refugees during the war between Kosovo and Serbia. 4 The appellant has appealed to this Court from the judgment of the Federal Magistrates Court. For the reasons set out below, I conclude that his appeal should be dismissed with costs.

procedural history of this appeal 5 This appeal has had an unhappy procedural history. 6 First, the appellant required an extension of time within which to appeal from the judgment of the Federal Magistrates Court. His solicitor swore an affidavit in support of the application for an extension of time in which he deposed to attempting to send a notice of appeal to the NSW District Registry of this Court by facsimile transmission within the time allowed by O 52 r 15 of the Federal Court Rules. It appears that he did not wait to sight a transmission verification report before departing overseas. The transmission verification report annexed to the solicitor's affidavit shows that the fax number to which the solicitor attempted to send the notice of appeal was busy. This is perhaps fortunate as the number shown on the transmission verification report is not a Federal Court number; one digit was wrongly entered. 7 On 17 March 2006 this Court ordered that the time within which the appellant could file and serve a notice of appeal be extended up to and including 24 March 2006 (SZEPN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 268). 8 No notice of appeal was filed in the period between 17 and 24 March 2006. It appears that an attempt was made to file a notice of appeal on 29 March 2006. The Registry properly refused to accept the notice for filing. 9 The respondent thereupon consented to the period of time within which the appellant could file and serve a notice of appeal being further extended. A notice of appeal was filed and served within the further extended period of time. 10 Only one ground of appeal is set out in the notice of appeal filed by the appellant. That ground asserts that the learned Federal Magistrate erred by failing to find that the Tribunal made a jurisdictional error because it 'overlooked' a single passage in the independent material available to the Tribunal. The passage in the independent material to which this ground of appeal refers can be identified by reference to the reasons for judgment of the Federal Magistrate (at [19]). It is an extract from the US State Department Report on the Federal Republic of Yugoslavia for 2001. The Federal Magistrate found that the Tribunal was justified in not referring to that passage because it instead placed reliance on a passage dealing with the same subject matter in the 2003 version of the same report (at [23]-[24]). 11 I conducted a direction hearing in respect of this appeal on 30 May 2006. On that day I ordered that the appeal book be filed and served by the solicitor for the appellant 14 days ahead of the hearing date fixed for the appeal. I also ordered that the appellant file and serve any further written submissions by no later than five clear working days before the hearing date. Neither of these orders was complied with. The appeal book was filed and served four days ahead of the hearing date fixed for the appeal and the appellant's written submissions were filed only 2 clear working days ahead of that time. 12 At the hearing of the appeal the appellant's solicitor, who appeared on his behalf both in this Court and in the Federal Magistrates Court, indicated that he wished to amend the notice of appeal - although he was not able to provide the Court, or the respondent, with a draft of the amendments he wished to make. Ultimately it emerged that the appellant, perhaps unsurprisingly, wished to abandon reliance on the only ground of appeal set out in his notice of appeal. 13 In lieu of the ground of appeal set out in his notice of appeal the appellant wished to rely on grounds of appeal to the following effect: (a) the Tribunal made a jurisdictional error by referring the appellant to independent evidence which it wrongly characterised as indicating that Serbian forces had withdrawn from Preshevo; and (b) the Tribunal made a jurisdictional error by overlooking certain passages in the independent evidence which were corroborative of the appellant's claims. 14 Neither of the above arguments was advanced before the Federal Magistrates Court. No evidence was adduced to explain why the arguments were not advanced below. The appellant's solicitor simply advised the Court that he 'missed' the arguments. The initial application for an extension of time within which to file and serve a notice of appeal had been supported by an affidavit to which a draft of the appellant's notice of appeal had been annexed (see O 52 r 15(b)). It was not argued before me, and it is in any event unnecessary for me to determine, whether the appellant would require a fresh extension of time to allow him to file and serve a notice of appeal raising entirely new grounds of appeal.