SZBNL v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 1020

FEDERAL COURT OF AUSTRALIA

SZBNL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1020

SZBNL AND SZBNM v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 1093 of 2005

BRANSON J
19 JULY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1093 of 2005

BETWEEN:

SZBNL
FIRST APPLICANT

SZBNM
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

BRANSON J

DATE OF ORDER:

19 JULY 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicants pay the respondent’s costs fixed in the sum of $800.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1093 of 2005

BETWEEN:

SZBNL
FIRST APPLICANT

SZBNM
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:	BRANSON J
DATE:	19 JULY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicants seek an extension of time within which to file and serve a notice of appeal from a judgment of the Federal Magistrates Court given on 19 July 2004.

2. The application was filed on 1 July 2005 along with a short affidavit in support sworn by the principal applicant (‘the applicant’). By that affidavit the applicant says that the notice of appeal was not filed within the time ordinarily allowed because he applied for Ministerial intervention under s 417 of the Migration Act 1958 (Cth) (‘the Act’). The draft notice of appeal annexed to the affidavit states the following purported grounds of appeal:

   ‘1.The Honourable Federal Magistrate erred in law in determining that the Tribunal was correct in deciding that the harassment I faced was not persecution within the meaning of the Refugees Convention.

   2.I will provide more details later.’

3. Order 52 rule 15(1)(i) of the Federal Court Rules provides that a notice of appeal must ordinarily be filed and served within 21 days after the date when the judgment appealed from was pronounced.  However, subrule (2) allows the Court for special reasons at any time to give leave to file and serve a notice of appeal.

4. The requirement for ‘special reasons’ in O 52 r 15(2) is intended to distinguish the case from the usual course according to which 21 days is the appropriate time within which a notice of appeal is to be filed and served.  It requires something to be established which would justify a departure from the general rule contained in O 52 r 15(1). 

5. I am inclined to doubt that the fact that the applicant has made an application to the Minister under s 417 of the Act is capable of constituting ‘special reasons’ within the meaning of O 52 r 15(2). Indeed, in some cases, this Court has regarded an application under s 417 as an acknowledgment that a claim for a protection visa is unsustainable (Daniel v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 205 ALR 198 at [14] and the cases there cited).

6. Even if I were satisfied that special reasons exist in this case, I would have to give consideration to the following factors:

   (a)the decision of the Tribunal which the applicant wishes to challenge was delivered more than three years ago;

   (b)a proceeding to challenge the decision of the Tribunal was instituted in the High Court on 24 July 2002 but, after being remitted to this Court, discontinued in June 2003;

   (c)the judgment of the Federal Magistrates Court from which the appellant seeks to appeal was delivered 12 months ago today; and

   (d)the draft notice of appeal annexed to the applicant’s affidavit does not identify any proper ground of appeal from the judgment of the Federal Magistrates Court.

7. Additionally, having read both the decision of the Tribunal and the reasons for judgment of the Federal Magistrate, I can identify no legitimate basis for a challenge to the decision of the Federal Magistrate.

8. Having regard to all of the circumstances identified above, this case is not one in which it would be appropriate for leave to file and serve a notice of appeal out of time to be given.  The appropriate order is that the application be dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:            26 July 2005

The Applicant appeared in person.
Advocate for the Respondent:	R White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	19 July 2005
Date of Judgment:	19 July 2005