NAFF v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 723

FEDERAL COURT OF AUSTRALIA

NAFF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 723

MIGRATION - application for an extension of time within which to file a notice of appeal – whether error in primary Judge’s decision – whether extension of time should be granted

Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574 cited

NAFF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 621 OF 2003

TAMBERLIN J
SYDNEY
20 JUNE 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 621 OF 2003

BETWEEN:	NAFF APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	20 JUNE 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant pay the respondent’s costs of this 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	N 621 OF 2003

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

JUDGE:	TAMBERLIN J
DATE:	20 JUNE 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an unfortunate case in which, as the primary Judge Lindgren J observed, the applicant has been subject to personal harassment in her home country but his Honour in substance concluded that there had been no error of law demonstrated in the decision of the Refugee Review Tribunal (“the RRT”) in this matter.

2. Before me is an application for an extension of time in which to file and serve a notice of appeal from the judgment of Lindgren J delivered on 28 March 2003.  His Honour dismissed the application with costs.  The history and the nature of the applicant's case are set out in the reasons for judgment of his Honour and I will not repeat them here.

3. It is a case where, as Lindgren J pointed out, the RRT characterised the applicant's claims as in substance domestic violence claims and proceeded to consider them in the light of the recent High Court decision in Minister for Immigration and Multicultural Affairs v Khawar (2002) 187 ALR 574. In referring to this authority it is apparent that the Tribunal did not misdirect itself in relation to the approach to be taken. An examination of the decision of the RRT indicates that it found that the applicant, if returned to her home country, could avail herself of effective protection by the state authorities in South Korea.

4. In so doing the RRT referred to substantial country information relating to developments in Korea in relation to state and civil society and in relation to two recent pieces of legislation: the Protection of Domestic Violence Act and the Victim Protection Act.

5. I have read the affidavit of the applicant in which she sets out the reasons why the notice of appeal was not stamped as filed by the Federal Court until considerably after the time for appeal had expired.  The stamp on the file indicates that the application for extension of time to file and serve a notice of appeal was only filed on 23 May 2003 and the notice of appeal was also filed in the Court on that day together with the affidavit.

6. Having considered the affidavit I would not refuse the application for an extension of time on the basis that there is an explanation given by the applicant, but as pointed out by the respondent, even if that explanation is accepted the application would still be out of time and it does seem that the formal application was only filed on 23 May 2003.  The important factor in this present application for an extension of time is whether any reasonable ground can be made out on which to challenge the decision of the RRT.  

7. Having considered the submissions of the respondent and having heard what the applicant has to say in the matter, I am not persuaded that any error of law has been shown in the decision of Lindgren J, nor am I persuaded that any reviewable ground has been advanced to the Court which would warrant a challenge by way of judicial review to the decision of the RRT.

8. I note that Lindgren J reached his decision with some regret and did indicate that perhaps this was a case for an application to be made to the respondent to exercise his discretion under s 417 of the Migration Act1958 (Cth). However, that consideration does not amount in any way to any indication that there is any error on the part of the RRT.

9. Accordingly on accepted principles I have reached the conclusion that the application for an extension of time should be refused in the present case.  I also can see no ground as to why the costs should not follow the event, and accordingly I order the applicant to pay the respondent's costs of this application. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:            17 July 2003

The Applicant appeared in person.
Solicitor-Advocate for the Respondent:	Z Chami
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	20 June 2003
Date of Judgment:	20 June 2003