SZNYL v Minister for Immigration and Citizenship

[2010] FCA 847

FEDERAL COURT OF AUSTRALIA

SZNYL v Minister for Immigration & Citizenship [2010] FCA 847

Citation:		SZNYL v Minister for Immigration & Citizenship [2010] FCA 847
Appeal from:		Application for extension of time: SZNYL v Minister for Immigration & Anor [2010] FMCA 302
Parties:		SZNYL v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
File number:		NSD 627 of 2010
Judge:		NORTH J
Date of judgment:		4 August 2010
Date of hearing:	4 August 2010
Date of last submissions:	4 August 2010
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	5
Counsel for the Applicant:	Ms Nolan
Counsel for the First Respondent:	Mr Smith
Solicitor for the First Respondent:	Sparke Helmore

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 627 of 2010

BETWEEN:

SZNYL
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE OF ORDER:	4 AUGUST 2010
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The time within which the applicant may file and serve a notice of appeal in the form of the draft notice of appeal filed in Court for the purpose of this application, is extended until 11 August 2010.

2.The costs of this application are reserved. 

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 Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 627 of 2010

BETWEEN:

SZNYL
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	NORTH J
DATE:	4 AUGUST 2010
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. Before the Court is an application for an extension of time in which to file an appeal from orders of the Federal Magistrates Court dated 6 May 2010.  On that day, the federal magistrate dismissed an application for review of a decision of the Refugee Review Tribunal made on 8 September 2009 not to grant the applicant a protection visa.

2. In this case, the applicant sought to file a notice of appeal on 3 June 2010, some seven days after the expiry of the 28 day period within which an appeal may be filed.

3. Where there are special reasons for doing so, the Court may grant an extension of time for instituting an appeal (O 52 r 15(2)).  In considering such an application some of the relevant matters are:

   a)   whether there is an explanation for the delay;

   b)   whether there is any prejudice to the respondent by the grant of an extension of time; and

   c)   the prospects of success on an appeal if allowed to proceed. 

4. In support of the application, the applicant filed an affidavit and a draft notice of appeal. In essence, the grounds canvassed in the draft notice of appeal are identical to those raised before the magistrate. Both the applicant and the respondent have also filed extensive written submissions, and made oral submissions in Court.  

5. The primary question raised is whether the federal magistrate complied with s 424A of the Migration Act 1958 (Cth) (the Act). I have reviewed the material carefully, and have formed the view that there exists sufficient arguability about the issues raised in the draft notice of appeal that the application to extend the time should be granted. Orders will be made to that effect.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated:       12 August 2010