Aneano v Minister for Immigration and Multicultural Affairs

[2001] FCA 707

FEDERAL COURT OF AUSTRALIA

Aneano v Minister for Immigration & Multicultural Affairs [2001] FCA 707

IMMIGRATION – PRACTICE & PROCEDURE – application for extension of time to file and serve notice of appeal – no affidavit filed with application – no written or oral explanation for failure to file application within time period – no suggestion that there is any prospect appeal will succeed.

PATRICK ANEANO (AKA IFEANYICHUKWIU NNAMANI) v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

NO. N 617 OF 2001

JUDGE:         BEAUMONT J
DATE:           8 JUNE 2001
PLACE:         SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 617 OF 2001

BETWEEN:	PATRICK ANEANO (AKA IFEANYICHUKWIU NNAMANI ) APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	BEAUMONT J
DATE OF ORDER:	8 JUNE 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed, with 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	N 617 OF 2001

BETWEEN:	PATRICK ANEANO (AKA IFEANYICHUKWIU NNAMANI ) APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J
DATE:	8 JUNE 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J:

1. This is an application for an extension of time in which to file and serve a notice of appeal from a decision of a Judge of this Court given on 3 April 2001. In that decision, the applicant’s application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) was dismissed. The applicant now seeks an order extending the time so that he may appeal from the decision at first instance.

2. The background to the matter, briefly, is as follows:

   ·    The applicant arrived in Australia on 18 October 2000 and was immediately taken into immigration detention. He has remained in immigration detention since that time. The applicant comes from Nigeria, speaks Ibo and is of the Christian religion.

   ·    The applicant applied to this Court, on 14 February 2001, for a review of a decision of the Tribunal given on 23 January 2001 in which the Tribunal affirmed a decision of the delegate of the respondent Minister not to grant him a protection visa. The grounds of the application, as set out in the form of application filed in the Court, were that –

   “His [H]onour erred in finding that the Refugee Review [T]ribunal had failed to provide adequat[e] reasons as required by … ss 430, 476 of the [M]igration Act 1958 and it was not open to persua[s]ion in favour of the Member”.

   ·    On 3 April 2001, a decision of a Judge of this Court was handed down noting that the Tribunal had had great difficulty in being sure what many of the underlying facts were and ultimately did not accept the applicant’s account of what had happened to him. At par 11, the following was noted:

   “The Tribunal gave clear reasons for its decision and there is not the slightest suggestion of actual bias to be found in its reasons for decision and there is no independent evidence of such bias. Accordingly the two grounds relied upon [in the application] are not made out.”

3. The present application for an extension of time was filed on 17 May 2001 outside the twenty-one day period provided for under Federal Court Rules Order 52 Rule 15(1). No affidavit was filed with the application and there has been no written or oral explanation for the applicant’s failure to file a notice of appeal within the period prescribed by the rules. The applicant, who is unrepresented, appeared before me by telephone with the assistance of an interpreter. An opportunity was afforded him to give oral submissions or to file written submissions by close of business on Tuesday 12 June 2001. No submissions have been forthcoming.

4. As not a great deal of time has passed since judgment was delivered on 3 April 2001 in this matter, I would not be inclined to regard the delay of itself as a basis for refusing an extension of time.  However, the fundamental difficulty in this case is that there is nothing in the notice of appeal to suggest that there is any prospect whatsoever that the appeal would succeed.  No ground has been given in the notice of appeal and, as stated above, neither written nor oral submissions have been given to suggest any basis upon which there might be prospects for success of an appeal if an extension of time were granted.

5. In these circumstances, I refuse the application for an extension of time.

   ORDERS

6. Application dismissed, with costs.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Associate:

Dated:             8 June 2001

Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	8 June 2001
Date of Judgment:	8 June 2001