MZYKI v Minister for Immigration and Citizenship

[2011] FCA 974

FEDERAL COURT OF AUSTRALIA

MZYKI v Minister for Immigration and Citizenship [2011] FCA 974

Citation:		MZYKI v Minister for Immigration and Citizenship [2011] FCA 974
Appeal from:		MZYKI v Minister for Immigration and Citizenship [2011] FMCA 585
Parties:		MZYKI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		VID 700 of 2011
Judge:		TRACEY J
Date of judgment:		23 August 2011
Legislation:		Migration Act 1958 (Cth) ss 476A, 477
Cases cited:		SZODM v Minister for Immigration and Citizenship [2010] FCA 885
Date of hearing:	23 August 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	7
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the First Respondent:	Mr C Warfe
Solicitor for the First Respondents:	Clayton Utz
Counsel for the Second Respondent:	The Second Respondent filed a submitting appearance

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 700 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZYKI
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE OF ORDER:	23 AUGUST 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2.The applicant pay the first respondent’s costs of the application.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 700 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

MZYKI
Applicant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	TRACEY J
DATE:	23 AUGUST 2011
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicant applies for an extension of time within which to file and serve a notice of appeal from the judgment of the Federal Magistrates Court in MZYKI v Minister for Immigration and Citizenship [2011] FMCA 585. The judgment was handed down on 2 June 2011. The application was made on 29 June 2011.

2. In that decision a Federal Magistrate dismissed an application by the applicant for an extension of time within which he might file and serve an application to review a decision of the Refugee Review Tribunal (“the Tribunal”).  On 16 September 2010 the Tribunal had affirmed a decision of a delegate of the Minister to refuse the applicant a protection visa.

3. The applicant submitted that a timely notice of appeal was not lodged in this Court because he mistakenly believed that he would have to pay a $100 fee to lodge an appeal and he lacked the necessary funds.

4. The Federal Magistrate’s decision was made under s 477(2) of the Migration Act 1958 (Cth) (“the Act”).

5. Section 476A(3)(a) of the Act provides that an appeal may not be brought to this Court from a decision made by the Federal Magistrates Court under s 477(2).

6. The power of the Court to enlarge time is discretionary in nature.  In the present circumstances the Court, whilst having sympathy for the applicant’s predicament, must, in the exercise of its discretion, refuse the application for enlargement of time.  This is because any enlargement would be pointless given that the Court lacks jurisdiction to entertain any appeal from the decision of the Federal Magistrate:  see SZODM v Minister for Immigration and Citizenship [2010] FCA 885.

7. The application will be refused with costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

Associate:

Dated:       23 August 2011