NAVQ v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 802

FEDERAL COURT OF AUSTRALIA

NAVQ v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 802

NAVQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 617 of 2004

WILCOX J
25 JUNE 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 617 of 2004

BETWEEN:	NAVQ APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	25 JUNE 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for extension of time to file and serve a notice of appeal from the decision of Hill J on 6 February 2004 be dismissed.

2.        The applicant pay the respondent’s costs of the application for extension of time.

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 617 of 2004

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

JUDGE:	WILCOX J
DATE:	25 JUNE 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an application for extension of time in which to appeal to a Full Court from a judgment of Hill J given on 6 February 2004.  His Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) to affirm the refusal of the applicant’s application for a protection visa.  The application for extension of time was filed on 29 April 2004, some two months after expiry of the 21 day limit for any appeal.

2. The applicant, who is in immigration detention at Villawood, made an affidavit on 23 April 2004, in which he explained that he had been advised (possibly not by a lawyer) to present what he called ‘new evidence’ about his case to the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), with a request that she consider his position. Presumably, the applicant or his adviser hoped the Minister might see fit to exercise the power given to her by s 417 of the Migration Act 1958 (Cth).

3. It is not clear when the material was sent to the Minister.  However, I interpret the applicant’s affidavit as indicating that this was shortly after the decision of Hill J and that it was a response to the fact that his Honour had ruled – rightly, of course – that the Court could not review the Tribunal’s findings of fact or its assessment of the applicant’s credit.

4. In his affidavit, the applicant said that ‘a few days ago’ he was informed by letter that the Minister had declined to consider intervention in his case.  He said: ‘For this reason I now seek leave to appeal out of time to the Full Federal Court of Australia’.

5. When the application for extension of time came before me for hearing on 8 June 2004, Mr D Brezniak of counsel appeared for the applicant and Mr R White, solicitor, for the Minister.  Mr White did not challenge the applicant’s evidence about an application to the Minister, although he was unaware of the relevant dates.  I informed the parties’ representatives that, under the circumstances, I was inclined to regard the applicant’s evidence as furnishing a reasonable explanation for his failure to file his notice of appeal within the prescribed time.  However, I was concerned whether the applicant would have any arguable case on the appeal.  I thought it would not be a proper exercise of discretion for me to extend time for the presentation of a futile appeal.

6. Mr Brezniak had argued the applicant’s case before Hill J.  However, he told me he had not had an association with the case from that time until he had been asked, on the evening before the hearing of the extension of time application, to attend court on the following day.  He told me he was not immediately able to indicate whether there was an arguable case on the appeal and would like an opportunity to consider this.

7. Although the Court might reasonably have expected that counsel would be ready to give an indication of the nature of any point of appeal, I decided to allow Mr Brezniak further time to consider Hill J’s judgment.  The applicant claims to entertain fears for his life if he is returned to his native country; any possibility of success on appeal is obviously important to him.  The applicant was apparently not personally responsible for delay in arranging Mr Brezniak’s assistance which, I gathered, was being provided on a pro bono basis.  I therefore adjourned the hearing of the application for extension of time on the basis that Mr Brezniak would provide a submission, within seven days, indicating whether he considered there was any substantial prospect that an appeal would succeed and the nature of the case that would be put on any appeal.

8. On 15 June 2004, Mr Brezniak notified the Minister’s solicitor that he was ‘not able to provide any argument as to error in the reasoning’ of Hill J in the judgment of 6 February 2004.  The Minister’s solicitor forwarded a copy of his letter to my associate.

9. I have carefully read the judgment of Hill J.  It deals, convincingly to my mind, with all the points put to his Honour by Mr Brezniak.  Like Mr Brezniak, I have been unable to discern any basis upon which it might cogently be contended that his Honour erred.

10. Under these circumstances, the appropriate course is to refuse the application for extension of time.  No good purpose would be served by allowing a futile appeal to go to hearing.

11. I propose to order that the application for extension of time to file and serve a notice of appeal be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:             25 June 2004

Counsel for the Applicant:	Mr D Brezniak
Solicitor for the Respondent:	Mr R White of Sparke Helmore
Date of Hearing:	8 June 2004
Date of Judgment:	25 June 2004