SZHUC v Minister for Immigration and Multicultural Affairs

[2006] FCA 1449

FEDERAL COURT OF AUSTRALIA

SZHUC v Minister for Immigration and Multicultural Affairs [2006] FCA 1449

MIGRATION LAW – application for extension of time to file and serve notice of appeal – delay caused by solicitor’s default – leave granted

SZHUC v Minister for Immigration & Multicultural Affairs [2006] FMCA 460 related
Applicant M164 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16 referred to

SZHUC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL
NSD 943 OF 2006

GYLES J
31 OCTOBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 943 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHUC
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	GYLES J
DATE OF ORDER:	31 OCTOBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The time within which to file and serve a notice of appeal in the form initialled by me is extended to 5.00 pm on Monday 6 November 2006.

2.The costs of this application are the first respondent’s 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 943 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHUC
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent  

REFUGEE REVIEW TRIBUNAL
Second Respondent  

JUDGE:	GYLES J
DATE:	31 OCTOBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. In this matter an extension of time is sought for filing a notice of appeal from the decision of Scarlett FM made on 17 March 2006 (SZHUC v Minister for Immigration & Multicultural Affairs [2006] FMCA 460). Both the applicant and his solicitor have given evidence that the applicant gave prompt instructions to appeal which were not complied with by the solicitor, solely because of his default due to what he claims was distraction at the time caused by external events which I need not go into. Whilst the position revealed is quite unsatisfactory and has led to an unacceptable delay, I am not prepared, in this case, to penalise the applicant because of the default of his solicitor. To say he has the right to sue his solicitor is of no comfort in a case of this kind.

2. It is necessary, however, to also show there is a proper basis for an appeal.  In the course of argument, I have indicated that a number of the proposed grounds will not be allowed.  Some meet Full Court authority head on.  That is the case in respect of proposed grounds 3 and 4.  Ground 5 was not put before the learned Federal Magistrate and should not be permitted on appeal.  Ground 6 is contrary to the statute. 

3. I am persuaded to permit grounds 1 and 2 because of the decision of the Full Court in Applicant M164 of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. Whilst the solicitor for the Minister has submitted that there are differences between this case and the underlying factual situation of that case, it seems to me that the applicant should not be shut out from seeking to bring himself within the rather ample boundaries set by that case if it is to be regarded as good law, and for present purposes I must so regard it. It is not appropriate for me to say any more than that I think that the rather liberal threshold has been met.

4. I order that:

   (1)the time within which to file and serve a notice of appeal in the form initialled by me is extended to 5.00 pm on Monday 6 November 2006;

   (2)the costs of this application are the first respondent’s costs in the appeal. 

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

Associate:

Dated:       7 November 2006

Solicitor for the Applicant:	Mr D Knaggs of Cross Law
Solicitor for the First Respondent:	Ms Felicity Kerr of Blake Dawson Waldron

Date of Hearing:	31 October 2006
Date of Judgment:	31 October 2006