SZHWI v Minister for Immigration and Citizenship

[2008] FCA 1705

FEDERAL COURT OF AUSTRALIA

SZHWI v Minister for Immigration and Citizenship [2008] FCA 1705

MIGRATION - application for extension of time to file a notice of appeal                  

Held: application granted

Federal Court Rules

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Jess v Scott (1986) 12 FCR 187
SZHWI v Minister for Immigration & Anor [2008] FMCA 1025
WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399

SZHWI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1296 OF 2008

JAGOT J
13 NOVEMBER 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1296 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHWI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JAGOT J
DATE OF ORDER:	13 NOVEMBER 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The time for filing and serving a notice of appeal is extended until 18 August 2008.

2.The draft notice of appeal annexed to the appellant’s affidavit filed 18 August 2008 be treated as the notice of appeal in the proceedings.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1296 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZHWI
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	JAGOT J
DATE:	13 NOVEMBER 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to extend time to file and serve a notice of appeal against a judgment of the Federal Magistrates Court of 25 July 2008 (SZHWI v Minister for Immigration & Anor [2008] FMCA 1025).

2. Order 52 rule 15(1)(a) of the Federal Court Rules provides that a notice of appeal is to be filed within 21 days of the date on which the judgment appealed from was pronounced.  In this case the period of 21 days expired on 15 August 2008.  This is the Monday immediately following Friday, 15 August 2008 (the last date for the filing of the appeal).  However, under order 52 rule 15(2) the Court for special reasons may at any time give leave to file and serve a notice of appeal. 

3. The applicant filed the application for an extension of time on 18 August 2008.  The application is accompanied by an affidavit from the applicant explaining his reasons for the delay.  The applicant said he was ill and was not able to file the notice of appeal in time.

4. The applicant’s draft notice of appeal specifies three grounds.  First, that the primary judge failed to take into account the seriousness of the nature of the applicant’s claims “in relation to the errors of the Refugee Review Tribunal”.  Secondly, that the primary judge failed to consider the applicant’s position at the Nepalese Embassy in Thailand in view of the Maoists’ power.  Thirdly, that the Tribunal failed to determine the applicant’s status as a parent whose child had been kidnapped.

5. The Full Court of the Federal Court explained the meaning of “special reasons” in Jess v Scott (1986) 12 FCR 187 at 195 as follows:

   ...the expression ‘special reasons’ is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression ‘for special reasons’ implies something narrower than this.

6. Relevant factors have been identified as including the length and explanation for the delay, other actions taken by the applicant contesting the decision, any prejudice to the respondent, any public interest considerations or impacts on third parties, the merits of the substantial application, and considerations of fairness as between the applicants and other persons otherwise in a like position (Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 – 349).

7. The delay was short.  The first respondent nevertheless opposes the extension of time because, it is submitted, the applicant has no real prospects of success on appeal.  Hence, granting the extension would be futile.

8. In WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7] the Court said that where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted. The respondent Minister pointed to the lack of evidence supporting the applicant’s claimed illness and the prejudice to the respondent Minister in terms of the time, resources and cost of defending an unmeritorious appeal.

9. I consider that the short delay in the filing of the application (in effect, over the weekend) carries significant weight given the nature of the case and is sufficient to satisfy Order 52 r 15 of the Federal Court Rules.  This conclusion says nothing about the foreshadowed appeal grounds or their prospects of success. 

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

Associate:

Dated:  13 November 2008

The Applicant appeared in person.
Solicitor for the First Respondent:	Clayton Utz
The Second Respondent did not appear.
Date of Hearing:	13 November 2008
Date of Judgment:	13 November 2008