Eloujenko v Minister for Immigration & Multicultural Affairs - [2001] FCA 1791

Eloujenko v Minister for Immigration & Multicultural Affairs [2001] FCA 1791
Practice & Procedure

Eloujenko v Minister for Immigration & Multicultural Affairs [2001] FCA 1791

PRACTICE & PROCEDURE - Application for extension of time in which to file a notice of appeal - Delay short and explainable - Whether proposed grounds of appeal disclosed an arguable case

Federal Court Rules O 52 rr 15(1) & 15(2)

Jess v Scott (1986) 12 FCR 187 referred to

Wolcott v Davis (1984) 4 FCR 124 referred to

Minister for Immigration and Multicultural Affairs v Kabail [1998] FCA 1320 referred to

Low v Commonwealth of Australia [2001] FCA 702 referred to

Howard v Australian Electoral Commission [2000] FCA 1767 referred to

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 referred to

GUEORGUI ELOUJENKO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1223 of 2001

O'LOUGHLIN, WHITLAM & MARSHALL JJ

14 DECEMBER 2001

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY N 1223 of 2001
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: GUEORGUI ELOUJENKO
APPLICANT
AND: MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGES:
O'LOUGHLIN, WHITLAM & MARSHALL JJ

DATE OF ORDER: 29 NOVEMBER 2001
WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal out of time is refused.

2. The applicant pay the respondent's costs, including reserved costs, to be taxed in default of agreement.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY N 1223 of 2001
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT AUSTRALIA
BETWEEN: GUEORGUI ELOUJENKO
APPLICANT
AND: MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGES: O'LOUGHLIN, WHITLAM & MARSHALL JJ
DATE: 14 DECEMBER 2001
PLACE: SYDNEY

REASONS FOR JUDGMENT

THE COURT:

1 On 29 November 2001 Mr Eloujenko sought an extension of time within which to file and serve a notice of appeal. At the conclusion of the hearing the Court ordered that an extension of time be refused and that Mr Eloujenko pay the respondent's costs, to be taxed in default of agreement. These are our reasons for making those orders.

2 The application related to a judgment given on 27 July 2001 dismissing with costs an application by Mr Eloujenko for review of a decision of the Refugee Review Tribunal ("the RRT"). The relevant RRT decision affirmed a decision of a delegate of the respondent not to grant Mr Eloujenko a protection visa.

3 Pursuant to O 52 r 15(1)(a) of the Federal Court Rules ("the Rules"), Mr Eloujenko was required to file any notice of appeal within 21 days after 27 July 2001. The present application was filed four days after that period on 21 August 2001. In his supporting affidavit, Mr Eloujenko said that he was unable to file a notice of appeal because, when it was due, he was "in bed with influenza (fever,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] FCA 1791
Decision Date: 14 DECEMBER 2001

CaseChat Overview and Summary

The case of Eloujenko v Minister for Immigration & Multicultural Affairs involved the applicant seeking an extension of time in which to file a notice of appeal against a decision of the Administrative Appeals Tribunal. The matter was heard in the Federal Court of Australia. The applicant had missed the statutory deadline for filing the appeal, and sought an extension on the basis of the delay being short and explainable, and the proposed grounds of appeal disclosing an arguable case.

The court was required to consider whether the delay in filing the notice of appeal was both short and explainable, and whether the proposed grounds of appeal disclosed an arguable case. In assessing the application, the court considered the principles established in previous cases, including the need for a good faith application, the importance of timely lodging of appeals, and the need for the applicant to establish a reasonable excuse for the delay. The court also considered the merits of the proposed grounds of appeal, and whether they had a reasonable chance of success.

In its reasoning, the court found that while the delay was relatively short and the applicant had provided a reasonable explanation for the delay, this was not sufficient to grant an extension of time. The court also found that the proposed grounds of appeal did not disclose an arguable case, and were unlikely to succeed. The court held that the application for leave to appeal out of time should be refused.

The final order of the court was that the application for leave to appeal out of time was refused. The applicant was not granted permission to file a late notice of appeal, and the decision of the Administrative Appeals Tribunal remained final. The court emphasised the importance of timely lodging of appeals, and the need for applicants to demonstrate both a reasonable excuse for delay and a reasonable chance of success on the merits of the appeal.

Orders

Orders of the court

1. The application for leave to appeal out of time is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1223 of 2001
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	GUEORGUI ELOUJENKO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES:	O'LOUGHLIN, WHITLAM & MARSHALL JJ
DATE OF ORDER:	29 NOVEMBER 2001
WHERE MADE:	SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	N 1223 of 2001
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT AUSTRALIA
BETWEEN:	GUEORGUI ELOUJENKO APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	O'LOUGHLIN, WHITLAM & MARSHALL JJ
DATE:	14 DECEMBER 2001
PLACE:	SYDNEY