NAJS of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 1444

FEDERAL COURT OF AUSTRALIA

NAJS of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 1444

NAJS OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1089 OF 2002

GYLES J
SYDNEY
19 NOVEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1089 OF 2002

BETWEEN:	NAJS OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	19 NOVEMBER 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application is dismissed.

2.        The applicant 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 1089 OF 2002

BETWEEN:	NAJS OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	19 NOVEMBER 2002
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. This is an application pursuant to O 52 r 15 for an extension of time within which to file and serve a notice of appeal.  The judgment appealed from is that of a Federal Magistrate delivered ex tempore on 12 September 2002.  The notice of appeal sought to be filed is dated 16 October and the evidence is that the applicant did not receive a revised copy of the transcript judgment until either that day or very shortly before that day.

2. I am thus satisfied that on the face of it there is no delay of a disqualifying kind on the part of the applicant.  Indeed, the solicitor for the Minister accepts that that is the position.  He submits, however, that the discretion which the Court has to exercise should not be exercised because the appeal would be bound to fail. 

3. This submission is essentially founded upon two bases.  The first is that the proposed notice of appeal does not contain any ground of appeal which can be recognised in law.  That is plainly correct.  The reasons for judgment of the learned magistrate indicate that the application which he had before him did not identify any grounds for review, either in the application itself or in the accompanying affidavit.  That judgment also points out that the matter had originally been before a judge of this Court who transferred the matter to the Magistrates’ Court and ordered that the appellant file and serve an amended application and any affidavit upon which he would rely on or before 19 July 2002.  No amended application was filed, nor did the applicant file and serve an outline of written submissions prior to the hearing, as ordered.  Thus, no ground was ever identified. 

4. Secondly, the solicitor for the Minister also points out that the substance of the decision of the magistrate was that as the Tribunal had found that the applicant was not credible in relation to his claims, there was no identifiable ground upon which judicial review would lie in any event but that that was plainly so in relation to a decision which is a privative clause decision within the meaning of s 474(1) of the Migration Act 1958 (Cth), as this decision was.

5. In my opinion, the submissions for the Minister are clearly correct and decisive in this case.  The applicant for extension of time has at no stage articulated any ground which would give rise to an arguable case on appeal.  It is not just a failure to do so in this immediate notice of appeal, although that would be enough.  Bearing in mind that the judgment was orally delivered, he has had since 12 September, and more realistically he has had since about 16 October, but there is still no ground identified.  This is consistent with all that has happened in the case since its inception.

6. Bearing in mind the limited role which the Court, whether it be the Magistrates’ Court or this Court on appeal can now play in decisions of this kind, it seems to me that to enable an extension of time for the filing of this notice of appeal or any notice of appeal which could properly be raised in relation to the decision below would be a waste of time and money.

7. Under the circumstances I dismiss the application.  I order that the applicant pay the costs of the respondent.

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:            22 November 2002

The applicant was self-represented
Solicitor for the Respondent:	A Markus, Australian Government Solicitor
Date of Hearing:	19 November 2002
Date of Judgment:	19 November 2002