SZAXU v Minister for Immigration& Multicultural and Indigenous Affairs

[2005] FCA 168

FEDERAL COURT OF AUSTRALIA

SZCII v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 165

SZCII v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
NSD 1777 OF 2004

HELY J
9 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1777 OF 2004

BETWEEN:	SZCII APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	9 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The applicant be granted an extension of time within which to lodge an appeal from the decision of Federal Magistrate Barnes up to and including Wednesday 23 February  2005.

2.The costs of the application be costs in the appeal.

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	NSD 1777 OF 2004

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

JUDGE:	HELY J
DATE:	9 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1  This is an application for an extension of time within which to lodge an appeal from a decision of Federal Magistrate Barnes pronounced on 3 November 2004.  The application for an extension of time was filed on 30 November 2004, accompanied by a draft notice of appeal.  The application was thus made only six days out of time, and the applicant explains his failure to lodge an appeal within the prescribed time because he was unaware of the time limits.  I accept that he has sufficiently explained the delay in lodging an appeal, and I would not refuse an application for an extension of time for that reason.

2  Ms Rayment opposes the application on the ground that the applicant’s draft notice of appeal does not demonstrate a viable basis for appeal, and that to extend time for the lodging of an appeal would simply be an exercise in futility. 

3  In my view, there is considerable force in that submission, as the notice of appeal substantially complains of wrong factual findings on the part of the Refugee Review Tribunal (‘the RRT’), which do not constitute jurisdictional error.  However, during the course of the RRT’s reasons for decision, in which it was accepted that the applicant was a member of the Indian Union Muslim League Party, the following appears:

‘The Tribunal is of the view that such an involvement is not certain to have given the applicant the profile that would have made him popular to the extent so alleged.’

(emphasis added)

4  There may be room for debate as to what the RRT meant by this statement, but on one view of what is said, the RRT has addressed the wrong question.  If that is so there would be a jurisdictional error.  I appreciate that this is not a matter which was agitated before the Federal Magistrate, nor is it included, at least, at the moment, in the draft grounds of appeal.  However, it seems to me that there is, at least, a possibility that the decision of the RRT may have miscarried.  Given the shortness of the delay, I propose to grant an extension of time within which the appellant can lodge an appeal.

5  What I propose to do is to grant the applicant an extension of time within which to lodge an appeal from the decision of the Federal Magistrate up to and including Wednesday, 23 February 2005.  The costs of this application are to be costs in the appeal.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:            2 March 2005

The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	9 February 2005
Date of Judgment:	9 February 2005