MZWNF v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 564

FEDERAL COURT OF AUSTRALIA

MZWNF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 564

MIGRATION – application for leave to appeal – application for extension of time within which to file and serve a notice of appeal – proposed appeal doomed to fail – application refused

MZWNF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

VID 283  2005

MARSHALL J
5 MAY 2005
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V283 OF 2005

BETWEEN:	MZWNF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MARSHALL J
DATE OF ORDER:	5 MAY 2005
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application for an extension of time within which to file a notice of appeal from a judgment of the Federal Magistrates Court is dismissed.
2. The applicant pay the respondent’s costs of the application

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	V283 OF 2005

BETWEEN:	MZWNF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MARSHALL J
DATE:	5 MAY 2005
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The application before the Court is for an extension of time within which to file and serve a notice of appeal from the judgment of a Federal Magistrate.  The judgment was delivered on 16 February 2005.  The application was filed on 5 April 2005.  It should have been filed by 9 March 2005, in accordance with the Rules of Court.  The applicant also filed an application for leave to appeal, upon the assumption that the Federal Magistrate’s judgment was an interlocutory one.

2. The judgment appealed from was delivered ex-tempore.  His Honour first refused an application by the applicant for an adjournment to enable the applicant to gather further information from India to support his application for judicial review of a decision of the Refugee Review Tribunal (“the RRT”).  The Federal Magistrate said that it was inappropriate to delay the hearing of an application to permit further facts to be raised before him, when he was not engaged in a merit review process.

3. His Honour noted that the RRT made certain findings of fact which the applicant did not accept.  Those findings included one that the applicant would be able to relocate within India to avoid the treatment which was the subject of his complaint. 

4. The Federal Magistrate considered that the applicant had sought to re-agitate factual issues, rather than matters which would provide a sufficient basis for the Court to interfere with the RRT’s decision by way of judicial review.

5. The applicant has not filed any affidavit in support of his applications.  He has filed a draft notice of appeal.  That draft notice does not raise any arguable ground of appeal.  Further there is no material before the Court which seeks to explain the applicant’s delay in seeking to appeal to this Court.  However, the applicant said this morning, that his application was delayed because he was waiting for the reasons of the Federal Magistrate.  Notwithstanding that, it would be inappropriate to extend time to allow an appeal to be raised when it was bound to fail.

6. Consequently, the application for an extension of time within which to appeal is 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 Marshall.

Associate:

Dated:            5 May 2005

The Applicant appeared for himself
Counsel for the Respondent:	Mr S D Hay
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	5 May 2005
Date of Judgment:	5 May 2005