SZEPN v Minister for Immigration and Multicultural and Indigenous Affairs

[2006] FCA 268

FEDERAL COURT OF AUSTRALIA

SZEPN v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 268

SZEPN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 52 OF 2006

ALLSOP J
17 MARCH 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 52 of 2006

BETWEEN:	SZEPN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	17 MARCH 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

(1)Time be extended for the filing and service of a notice of appeal up to and including Friday 24 March 2006. 

(2)The appeal be referred to Deputy District Registrar Morgan of the Appeals Unit for its conduct.

(3)The Minister's 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 52 of 2006

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

JUDGE:	ALLSOP J
DATE:	17 MARCH 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. I have before me an application for an extension of time in which to file and serve a notice of appeal.  The evidence indicates that the attempt to file a notice of appeal from the orders of the Federal Magistrates Court made on 22 November 2005 were unsuccessful due to various difficulties encountered by the solicitor for the putative appellant.

2. The Minister perfectly and properly, if I may respectfully say so, does not take any issue with the fact that the attempt to file was out of time but, rather, submits that the appeal apparently being brought forward is sufficiently clearly hopeless as to lead to the conclusion that any grant of an extension of time would be futile.

3. Brief submissions have been filed in relation to the matter by the solicitor for the applicant.  Those submissions direct themselves to the approach of the Refugee Review Tribunal (the “Tribunal”) both as to its factual findings but also what is said to be its dismissive approach of the claims of the applicant.  I am not persuaded that there is a good ground of appeal in the sense that there is a likelihood that the appeal would succeed. 

4. However, given the contents of the Tribunal's reasons and given the fact that the High Court has made it clear in cases such as Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 that the mere fact that what is contested as other findings of fact does not deny the ability of an applicant to prove jurisdictional error, and taking into account the submissions put forward on behalf of the applicant by Mr Newman, in the circumstances of the oversight that led to the failure to file an appeal within time, I think it would be an injustice to deny this applicant an appeal to the Court whether before a single Judge or a Full Court.

5. For those reasons I make the following orders:

   (1)I extend time for the filing and service of a notice of appeal up to and including Friday 24 March 2006. 

   (2)I refer the appeal to Deputy District Registrar Morgan of the Appeals Unit for its conduct.

   (3)The Minister's costs of the application 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 Allsop.

Associate:

Dated:             22 March 2006

Counsel for the Applicant:	M Newman
Solicitor for the Applicant:	Newman & Associates
Counsel for the Respondent:	S A Mason
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	17 March 2006
Date of Judgment:	17 March 2006