SZRDH v Minister for Immigration and Citizenship

[2012] FCA 1099

FEDERAL COURT OF AUSTRALIA

SZRDH v Minister for Immigration and Citizenship [2012] FCA 1099

Citation:		SZRDH v Minister for Immigration and Citizenship [2012] FCA 1099
Parties:		SZRDH v MINISTER FOR IMMIGRATION AND CITIZENSHIP
File number:		NSD 1480 of 2012
Judge:		EDMONDS J
Date of judgment:		4 October 2012
Date of hearing:	4 October 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	6
Solicitor for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	DLA Piper

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1480 of 2012

BETWEEN:	SZRDH Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	EDMONDS J
DATE OF ORDER:	4 OCTOBER 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for an extension of time be refused.

2.The applicant pay the respondent’s costs as agreed or taxed.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1480 of 2012

BETWEEN:	SZRDH Applicant
AND:	MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent

JUDGE:	EDMONDS J
DATE:	4 OCTOBER 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file a notice of appeal from a judgment of the Federal Magistrates Court of Australia, delivered on 13 July 2012.  The application for an extension of time was filed on 2 October 2012, more than seven weeks after the time limited for the filing of a notice of appeal in this Court expired.  The application was supported by an affidavit, sworn by the applicant, to which there was attached a statement in Spanish, accompanied by an English translation, setting out what purported to be the reasons for the applicant’s failure to file a notice of appeal on a timely basis.

2. I have reviewed that statement and it does not appear to me to contain any reasons which explain the applicant’s failure; certainly it does not contain any material which would satisfy the requirement of special circumstances justifying the grant of an extension of time.  For that reason, I gave the applicant an opportunity to inform the Court of the reasons why he was unable to file a notice of appeal on a timely basis.  Like the statement which accompanied his supporting affidavit, the substance of the applicant’s explanation appeared to be that he did not speak English, he only spoke Spanish, and he could not converse with anyone at the Villawood Detention Centre, where he is currently in detention.

3. That, in itself, may provide difficulties for the applicant in communication but it does not explain why the applicant did nothing in terms of pursuing inquiries as to what relief he might seek in the face of the decision of the Federal Magistrates Court.  On the other hand, on discovering that any such appeal was now out of time, he did not seem to have any difficulty in obtaining immediate assistance to file and serve an application for an extension of time and a supporting affidavit.  The only inference that I can draw is that the applicant did not take any steps to discover and inform himself as to his rights of appeal until such time as he was informed that any such appeal was be out of time.

4. Those circumstances do not amount to special circumstances upon which to grant an extension of time.  That would be sufficient to dismiss the application for an extension of time, however the application was not accompanied by any draft notice of appeal setting out the grounds upon which the applicant proposed to rely if an extension of time was granted.  For that reason, I gave the applicant an opportunity to articulate the grounds upon which he would seek to appeal to this Court from the Federal Magistrates Court, in particular to articulate the basis upon which he claimed the Court’s decision was infected with error.

5. The only basis upon which the applicant indicated that he wished to bring his appeal was that he wanted the opportunity to present his case to this Court as to the situation he confronted if he was returned to Cuba; in other words, the applicant sought merits review of the Tribunal’s decision.  Clearly, that is not available to the applicant, as it was not available to him before the Federal Magistrates Court.  The Federal Magistrates Court came to the view that the Tribunal’s decision was not infected with jurisdictional error on the basis of any of the grounds raised before that Court and, having read the reasons of the Court, I am of the view that no appealable error arises.

6. There would, therefore, be no utility in granting the applicant an extension of time in which to file a notice of appeal and the application must be refused.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

Associate:

Dated:       9 October 2012