NAHY v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 644

FEDERAL COURT OF AUSTRALIA

NAHY v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 644

NAHY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 506 OF 2003

GYLES J
SYDNEY
20 MAY 2003

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 506 OF 2003

BETWEEN:	NAHY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	20 MAY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant is to pay the costs of the respondent.

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 506 OF 2003

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

JUDGE:	GYLES J
DATE:	20 MAY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application to extend time for filing a notice of appeal from the judgment of Madgwick J, given on 21 March 2003.  Granting of such an extension of time involves essentially two things.  The first is to explain the delay and the second is to show that there is some proper basis for appeal.  As to the first, the applicant, who is and was unrepresented, explains that he thought that the time for an appeal would run from the supply of the written reasons for the ex tempore judgment given on 21 March, those reasons not being obtained until 8 April 2003.  That, together with some possible medical problems, would probably suffice to explain the delay sufficiently. 

2. However, as to the second, in submissions filed prior to the hearing of this application the solicitor for the Minister has submitted that in substance there is plainly no basis for the appeal and that it would be futile to grant the extension of time sought.  In my opinion this submission is correct.  The draft notice of appeal which is proposed to be filed states the following ground:

   ‘I am not satisfied with decision from the Federal Court of Australia which admits mistakes in the Refugee Review Tribunal but stop short to recommend of the decision.’

3. That does not of course set out any proper ground of appeal.  When I go back to the original application to the Court and the supporting affidavit, I find that the details of the claim indicate that the applicant was critical of the state of knowledge of the Refugee Review Tribunal (“the Tribunal”) concerning current conditions in the Ukraine.  Before me today he repeats that as being the nub of his complaint.  He says that he can obtain material which would demonstrate this and he would like more time to get this material together and obtain a lawyer to put his case.

4. The applicant arrived in Australia in August 2000.  The Tribunal decision was dated 19 December 2002 and the proceeding in this Court was heard and decided by Madgwick J on 21 March 2003.  There has been ample time for the applicant to organise what he wishes to organise in the lengthy period during which the matter was considered by first the Minister’s Department then the Tribunal and then a Judge of this Court. 

5. Fundamentally, however, even if factual material might be obtained it would not go to any ground of appeal that has been isolated or identified from the judgment of Madgwick J.  I should also indicate that I have read the judgment of Madgwick J and, bearing in mind the inability of the applicant to properly raise any ground of review, it seems to me that his Honour bent over backwards to consider the applicant’s case and obviously carefully considered the decision of the Tribunal to see whether his Honour could isolate any reviewable error. 

6. Despite this, his Honour was unable to do so.  I have also read the Tribunal’s decision, not with a view to going through it with a fine tooth comb to see if there is any error, but to ensure that there was no obvious error which had been overlooked by Madgwick J and which could conceivably form the basis of an appeal.  I was unable to identify any such error.  In those circumstances, in my opinion, to grant an extension of time to lodge a notice of appeal would be to set in train a futile appeal with all of the costs and distraction it occasions to both the Court and the Minister.  In my opinion, the application must be and is dismissed.

7. The solicitor for the Minister has sought an order for costs.  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 Gyles.

Associate:

Dated:            25 June 2003

The Applicant appeared in person
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	20 May 2003
Date of Judgment:	20 May 2003