SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 1528

FEDERAL COURT OF AUSTRALIA

SZCTH v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 1528

SZCTH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 1598 OF 2004

STONE J
23 NOVEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1598 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZCTH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	23 NOVEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for an extension of time for leave to file a notice of appeal be dismissed.
2. The applicant pay the respondent’s costs in the amount of $1200.

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 1598 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

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

JUDGE:	STONE J
DATE:	23 NOVEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks an extension of time to file a notice of appeal from the orders made by a Federal Magistrate on 12 May 2004.  His Honour dismissed the application for judicial review of the decision made by a delegate of the respondent Minister on 13 May 1997.  Since 1997 the applicant has made numerous attempts to obtain the right to remain in Australia.  It is not necessary to detail those attempts in these reasons.  Ultimately, however, the applicant brought his complaints about the decision of the Minister's delegate to the Federal Magistrates Court and, as mentioned above, his application was dismissed. 

2. The applicant did not file his application for an extension of time to file and serve a notice of appeal until 3 November 2004.  This was nearly six months longer than the 21 days allowed under O 52 r 15(1) of the Federal Court Rules.  The applicant explains that delay as being a result of his severe mental illness and depression suffered subsequent to the decision of the Federal Magistrate.

3. In deciding whether to grant the extension of time sought by the applicant the Court must consider not only the extent of the delay but also the likelihood of any appeal being successful.  This criterion requires me to consider the reasons given by the Federal Magistrate for dismissing the application before him although, of course, it is not necessary for me to express a concluded view on the matter. 

4. His Honour rejected the application for review because he decided that there was nothing in the delegate’s decision to support a claim of jurisdictional error and also because the applicant did not satisfactorily explain his delay in bringing his application before the Federal Magistrates Court. 

5. The applicant’s claim that the delegate had made a jurisdictional error was the subject of detailed and comprehensive submissions before the Federal Magistrate, not only on behalf of the respondent Minister but also on behalf of the applicant.  His Honour made special reference to the quality of the assistance provided by Ms Tucker of counsel who appeared for the applicant pro bono.  This assessment is supported by the lengthy quotations from Ms Tucker’s written submissions included in his Honour’s judgment.  I am satisfied that the application before his Honour did not fail for want of legal assistance for the applicant. 

6. His Honour also quoted at length from submissions made by counsel for the respondent.  These lengthy quotations from counsel for each side plus his Honour’s discussion of the applicant’s claims allow me to form a firm opinion that his Honour’s analysis of the delegate’s decision was thorough and accurate.  His Honour found nothing to support a claim of jurisdictional error.  In my view, his Honour was correct in his assessment and it would follow, on that ground alone, that an appeal from his Honour’s decision would have little chance of success. 

7. As mentioned above, however, his Honour also considered whether, as a matter of discretion, he should refuse relief even if jurisdictional error had been established.  He said at [28] of his reasons:

   ‘Although the applicant has over the past seven years been engaged in fruitless litigation in the Federal Court and in attempts to secure Ministerial intervention pursuant to ss. 417 and 48B of the Migration Act, that does not fully and satisfactorily explain the delay in bringing these present proceedings. … In particular, the applicant has not satisfactorily explained his delay since he discontinued his proceedings in the High Court on 20 March 2001.  His impecuniosity is not an adequate explanation.  Fresh approaches to the Minister under s. 417 and s. 48B took only a couple of months.  The delay in bringing these proceedings has, in the circumstances, been excessive.’

8. His Honour decided, for reasons of that delay, quite independently of any question of jurisdictional error that he should not give the relief sought by the applicant.  Given the view that I have expressed in relation to the likelihood of his application succeeding on appeal, I would be particularly reluctant to interfere with his Honour’s exercise of discretion. 

9. At the hearing today, the applicant has been given a very full opportunity to make submissions in support of his application.  Not surprisingly, he has not been able to point to jurisdictional error in the delegate’s reasons or any error in the decision of his Honour that might justify granting leave to appeal.  Many of his submissions related to the perceived merits of his claim rather than to matters that are within this Court’s jurisdiction.  It is well established that this Court cannot enter into a consideration of the merits of the applicant’s claims. 

10. For these reasons the application for an extension of time to appeal must be dismissed.  The applicant must pay the respondent’s costs fixed in the amount of $1200. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             23 November 2004

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	23 November 2004
Date of Judgment:	23 November 2004