SZAMO v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 179

FEDERAL COURT OF AUSTRALIA

SZAMO v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 179

Migration Act1958 (Cth) s 477(1)
Administrative Decisions (Judicial Review) Act 1977 (Cth) s 11(3)

SZAMO v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 2516 OF 2003

HELY J
24 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2516 OF 2003

BETWEEN:	SZAMO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	24 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The time within which the applicant is to lodge an appeal from the decision of Scarlett FM given on 26 November 2003 is extended until 8 March 2003.

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 2516 OF 2003

BETWEEN:	SZAMO APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	24 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to file and serve a notice of appeal from a decision of Federal Magistrate Scarlett, given on 26 November 2003.  The applicant’s evidence is that he did not receive that decision until 1 December 2003 and he was under the impression that he had 28 days within which to appeal from it.  In fact, the last day for an appeal was 17 December 2003 and this application for an extension of time was not made until 23 December 2003.

2. The delay in making the application is therefore a little less than a week and, if the only issue was the question of delay, I would be satisfied that there are special circumstances sufficient to grant an extension of time.  The only matter that troubles me is whether I should in the exercise of my discretion refuse to grant an extension because it would be an exercise in futility as the appeal is bound to fail. 

3. The Refugee Review Tribunal (‘the RRT’) gave its decision on 14 March 2002. Under s 477(1) of the Migration Act1958 (Cth) (‘the Act’) there is a non-extendable period of 28 days within which to appeal from that decision, provided, of course, that the decision is a privative clause decision. There is also a period of 28 days within which to make an application under the s 11(3) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’), provided of course that the application of that Act is not excluded by reason of the fact that the decision in question is a privative clause decision.

4. Whether the decision in question is a privative clause decision is not without its complications.  One of the grounds on which the appellant relies is a denial of natural justice.  If that ground were established there would be a jurisdictional error, and as I understand the authorities the decision would not be a privative clause decision.

5. I strongly suspect that the applicant’s appeal will probably fail but I am not comfortably satisfied at the moment that the application is so hopeless that I should throw it out at the beginning.  In those circumstances, I propose to grant an extension of time for the applicant within which to file a notice of appeal. 

6. I propose to extend the period within which the applicant may lodge a notice of appeal from the decision of Federal Magistrate Scarlett given on 26 November 2003 until Monday 8 March 2003. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             3 March 2004

The applicant appeared in person
Counsel for the Respondent:	Ms B Rayment
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	24 February 2004
Date of Judgment:	24 February 2004