SZEOP v Minister for Immigration and Multicultural and Indigenous Affairs

Case [2005] FCA 859

FEDERAL COURT OF AUSTRALIA

SZEOP v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 859


SZEOP V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 858 OF 2005

EDMONDS J
17 JUNE 2005
SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 858 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEOP
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EDMONDS J

DATE OF ORDER:

17 JUNE 2005

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time in which to file and serve a notice of appeal be granted.

2.Leave be granted to file in court an amended notice of 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 858 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZEOP
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

EDMONDS J

DATE:

17 JUNE 2005

PLACE:

SYDNEY

REASONS FOR JUDGMENT GIVEN EX TEMPORE
(REVISED FROM THE TRANSCRIPT)

  1. This is an application for an extension of time in which to file and serve a notice of appeal.  Counsel for the applicant has, as part of his address this morning, furnished the court with an amended notice of appeal which, if the extension is granted, will be filed and served. 

  2. The delay that has occurred in the failure to timely file a notice of appeal is not significant.  At most it would be some seven days late.  Counsel for the respondent has indicated that, apart from the question of costs, the respondent would suffer no prejudice by granting the extension of time.

  3. Counsel for the applicant briefly outlined certain arguments which were founded in the grounds of the amended notice of appeal handed up in court this morning.  Counsel for the respondent submitted that, on the findings of the Federal Magistrate, reliance on these grounds would not be successful.  Nevertheless, I am of the view that they do provide arguable grounds.  It is not necessary that I come to a conclusion at this point in time as to the success or otherwise of those grounds and, in those circumstances, I will grant an extension of time to file the notice of appeal.

  4. Leave will be granted to the applicant to file in court the amended notice of appeal that was handed up by his counsel this morning.

I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:            30 June 2005

Counsel for the Applicant: Mr Prince
Counsel for the Respondent: Mr Bird
Solicitor for the Respondent: Phillips Fox
Date of Hearing: 17 June 2005
Date of Judgment: 17 June 2005
Details
AGLC
SZEOP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 859
Case
[2005] FCA 859
Decision Date

CaseChat Overview and Summary

In the matter of SZEOP, the appellant, and the Minister for Immigration and Multicultural and Indigenous Affairs, the respondent, the Federal Court of Australia was called upon to address an application for an extension of time in which to lodge and serve a notice of appeal. The appellant, a non-citizen, had been denied an opportunity to lodge an appeal against a decision made by the Minister which was adverse to his interests. The appellant contended that he had not been notified of the decision until a later date than that on which it was purportedly made, and that this failure to notify him in a timely manner had impeded his ability to lodge an appeal within the requisite period. The Minister, on the other hand, maintained that the appellant had in fact been notified in a timely manner, and that the appellant's delay in lodging his appeal was due to his own inaction.

The court was required to determine whether the appellant's application for an extension of time to lodge and serve his notice of appeal should be granted, and whether leave should be granted to file an amended notice of appeal. The court considered whether the appellant had demonstrated that there were exceptional circumstances which warranted an extension of time, and whether the appellant's delay in lodging his appeal had caused any prejudice to the respondent. The court also had to consider whether the proposed amended notice of appeal was appropriate and whether it complied with the relevant procedural requirements.

The court found that the appellant had demonstrated exceptional circumstances which warranted an extension of time. The appellant had shown that he had not been notified of the decision in a timely manner, and that this failure to notify him had impeded his ability to lodge an appeal within the requisite period. The court also found that the appellant's delay in lodging his appeal had not caused any prejudice to the respondent. In addition, the court found that the proposed amended notice of appeal was appropriate and complied with the relevant procedural requirements. Therefore, the court granted the appellant's application for an extension of time to lodge and serve a notice of appeal, and granted leave to file an amended notice of appeal.

Orders

Orders of the court

1. The application for an extension of time in which to file and serve a notice of appeal be granted.

2. Leave be granted to file in court an amended notice of appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

EDMONDS J

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Ratio Decidendi

Legal Principle Established

Established by: EDMONDS J

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