NACA v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 795

FEDERAL COURT OF AUSTRALIA

NACA v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 795

NACA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N540 of 2002

WILCOX J
17 JUNE 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N540 OF 2002

BETWEEN:	NACA APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	17 JUNE 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for extension of time be refused.

2.The applicant pay the costs of the respondent incurred in connection with 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
NEW SOUTH WALES DISTRICT REGISTRY	N540 OF 2002

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

JUDGE:	WILCOX J
DATE:	17 JUNE 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for an extension of time to appeal against a decision of Tamberlin J given on 10 May 2002.  The Federal Court Rules limit the time for appeal to 21 days.  That time expired on 31 May.  No notice of appeal was filed by 31 May.  The application for extension of time was filed on 7 June; that is, 28 days after Tamberlin J’s decision.

2. The application for extension of time was fixed for hearing today.  The parties were notified of that fact by letter dated 12 June.  The letter was faxed to the applicant at Villawood Immigration Detention Centre, where he is presently being held.

3. The applicant appeared in person today, assisted by an interpreter.  He suggested of an Adelaide lawyer had some involvement in the case, but there is no document before me to confirm any lawyer is currently acting.  It seems the applicant was represented by Mr David Godwin of counsel at the hearing before Tamberlin J.  Apparently Mr Godwin appeared without the intervention of a solicitor.  The applicant told me Mr Godwin had told him, after the hearing before Tamberlin J, that he could not help any further.

4. The application for extension of time was signed by a cousin of the applicant, who is apparently not a lawyer.  The application attaches a draft notice of appeal which specifies three grounds.  The first two grounds are complaints, first, that the Refugee Review Tribunal did not provide adequate or proper interpreting services and, second, that the Tribunal was affected by actual bias.  Neither of these matters was raised before Tamberlin J.

5. The third ground is that the Tribunal failed to comply with statutory procedures.  It refers to s 476(1)(a) of the Migration Act.  That provision has been repealed.  It never had any application to the Tribunal’s decision, which was made after the commencement of the amending legislation on 2 October 2001. 

6. It would not be possible for the applicant to raise the grounds he has foreshadowed except with the leave of the Full Court.  Nothing has been put to me to indicate why leave should be granted, or to show there is any substance in either of the first two stated grounds.  When I asked the applicant about these matters, he said his lawyer thought he had a strong case.  Perhaps he does; but nothing has been put before me to indicate there is even an arguable case.

7. The application for extension of time was filed seven days after the expiry of time for appeal.  I have not called upon Mr Markus, solicitor for the Minister; but I ordinarily would not be greatly concerned about a delay of only seven days.  However, it would not be an appropriate exercise of the Court’s discretion for me to grant leave in the absence of some indication of an arguable case on the appeal.  Accordingly, I refuse the application for extension of time to appeal.  I order that the applicant pay the respondent’s costs of the application.

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

Associate:

Dated:            24 June 2002

Applicant appears in person, assisted by interpreter, Sharperai Jallya
Counsel for the Respondent:	Mr A Markus
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 June 2002