SZFDN v Minister for Immigration and Multicultural &

[2005] FCA 725

FEDERAL COURT OF AUSTRALIA

SZFDN v Minister for Immigration & Multicultural &
Indigenous Affairs [2005] FCA 725

SZFDN v MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 681 of 2005

LINDGREN J
25 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 681 OF 2005

BETWEEN:	SZFDN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	25 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.To the extent that it may be necessary, the applicant have leave to file and serve a notice of appeal in accordance with the form of notice of appeal annexed to his affidavit sworn 25 April 2005.

2.        The appeal be fixed for hearing at 9.30 am on Tuesday, 7 June 2005.

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 681 OF 2005
BETWEEN:	SZFDN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LINDGREN J
DATE:	25 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. There is before the Court an application for an extension of time in which to file and serve a notice of appeal.  The appeal would be from a decision of the Federal Magistrates Court of Australia given on 23 February 2005, dismissing an application for review of a decision of the Refugee Review Tribunal.  The 21 day appeal period expired on 16 March 2005.  The present application and affidavit in support were filed 44 days later - on 29 April 2005.  The affidavit in support has annexed to it a draft notice of appeal.  The application for the extension is made under O 52 r 15(2), under which the applicant must show ‘special reasons’.

2. The affidavit in support asserts that the applicant filed ‘an application appeal’ on 4 March 2005. This allegation has led to a search of the Court’s files.  The true position remains unclear.

3. There is a one-page page facsimile coversheet which the applicant faxed to the Court on 4 March 2005 from the Villawood Immigration Detention Centre.  That page has been re-faxed.  The fax imprint suggests that only that one page was faxed to the Court on 4 March.  That page was, however, one of three pages faxed on 15 April and one of six pages faxed on 29 April.

4. On the other hand the fax imprint in a box on the cover page does suggest that three pages were faxed on 4 March.  The form of notice of appeal comprises two pages, which, with the cover sheet, would make a total of three pages.  The handwriting on the fax cover sheet also states:

   ‘Pages: 3 (including this page).’

5. I cannot be sure that the two-page notice of appeal accompanied the cover sheet which was faxed to the Court on 4 March, although it seems clear that at the very least the applicant attempted to fax it to the Court on that date.  Another point to note is that the handwritten notice of appeal annexed to the applicant’s affidavit is also dated 4 March, not 25 April, which was the date of the accompanying affidavit.

6. After the matter was discussed, Ms Burnett, solicitor, who appears for the respondent, has indicated very fairly that she would not oppose the filing of the notice of appeal now if it indeed needs to be filed.  It would not need to be filed if I were to make a finding that it was in fact filed by fax on 4 March 2005.  Ms Burnett’s concession saves me the necessity of resolving the factual issue mentioned.

7. I was minded to proceed immediately to hear the appeal but the problem is that the appeal itself is not listed for hearing today, and there has not yet been a determination by the Chief Justice that the appeal should be heard by a single judge. 

8. I will be recommending that the appeal be heard by a single judge, and, subject to the Chief Justice’s acceptance of that recommendation, the appeal will be fixed for hearing on Tuesday, 7 June 2005 at 9.30 am.  Accordingly, the only orders of the Court today are that:

   1.To the extent that it may be necessary, the applicant have leave to file and serve a notice of appeal in accordance with the form of notice of appeal annexed to his affidavit sworn 25 April 2005.

   2.        The appeal be fixed for hearing at 9.30 am on Tuesday, 7 June 2005.

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

Associate:

Dated:             2 June 2005

The Applicant appeared in person
Solicitor for the Respondent:	Ms S Burnett of Clayton Utz
Date of Hearing:	25 May 2005
Date of Judgment:	25 May 2005