Huynh v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1024

FEDERAL COURT OF AUSTRALIA

Huynh v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1024

MIGRATION – application for extension of time to file and serve notice of appeal from a decision of the Administrative Appeals Tribunal refused

HUNG HUYNH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD1204 OF 2005

GYLES J
25 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD1204 OF 2005

BETWEEN:	HUNG HUYNH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	25 JULY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for extension of time in which to file and serve a notice of appeal be dismissed.

2.The applicant pay the respondent’s costs fixed at $1,000.

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	NSD1204 OF 2005

BETWEEN:	HUNG HUYNH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	25 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal from a decision of the Administrative Appeals Tribunal, which was delivered on 3 September 2004.  The decision affirmed a decision by the Minister to cancel the applicant’s visa because of the existence of a substantial criminal record.  The nature of the application was such that the Tribunal conducted a de novo consideration of the merits of the matter.

2. At the time of the decision the applicant was in custody in New South Wales and remains in custody.  His explanation for delay in filing a notice of appeal and, indeed, in bringing this application is the substantial difficulties that he is under being in detention, particularly because he was, he says, moved from place to place, which exacerbated the difficulties he was already under. 

3. It may very well be that those circumstances would be sufficient to permit an extension of time to be granted bearing in mind that, except in a very general sense, there is no prejudice to the respondent, as the applicant is and remains in custody.  However, in an application of this sort, it is necessary that the Court be satisfied that there is, at least, an arguable ground of appeal.  In this respect, it needs to be understood that s 44 of the Administrative Appeal Tribunal Act 1975 (Cth) (the Act), provides only for an appeal on a question of law. 

4. The applicant has filed no draft notice of appeal and it is submitted for the respondent Minister that the failure to do so and, in particular, the failure anywhere to identify an arguable error of law, is fatal to the application.  It is submitted that the decision of the Tribunal is unassailable.  The answer to the essential question as to whether there was a substantial criminal record is hardly open to doubt.  That being so, the decision amounted to the exercise of a discretion in relation to which the Tribunal Member was guided, as the law required, by the Ministerial direction made pursuant to s 499 of the Act.  It was submitted that there is nothing in the reasons of the Tribunal which causes there to be any doubt as to the legality of what took place.

5. I have read the Tribunal's decision and I can only agree with the submission put on behalf of the Minister.  The decision appears to be quite conventional in its application of the law and certainly no arguable ground of appeal occurs to me.  I understand the difficulty that the applicant is in now, because he is unrepresented and in custody, and I appreciate the difficulties he may have had in pursuing his case before the Tribunal.  However, there is certainly no arguable ground of appeal disclosed and, in those circumstances, the application for extension of time is doomed to failure.

6. The application is dismissed.  The applicant is to pay the respondent's costs of the application fixed at $1,000.

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

Associate:

Dated:            27 July 2005

Counsel for the Applicant:	The Applicant appeared in person
Solicitor for the Respondent:	S Zarucki of Clayton Utz
Date of Hearing:	25 July 2005
Date of Judgment:	25 July 2005