Williams v Construction, Forestry, Mining and Energy Union - [2009] FCA 233

FEDERAL COURT OF AUSTRALIA
SZMMP v Minister for Immigration and Citizenship [2009] FCA 233
PRACTICE AND PROCEDURE – application for extension of time within which to file and service a notice of appeal – special reasons required to show by the appeal should be permitted to proceed – explanation given for the delay perfunctory and incomplete – question of extension of time determined by reference to the merits of the appeal – no prospect of appeal succeeding – application dismissed
MIGRATION – procedural fairness – whether Refugee Review Tribunal complied with s 424AA Migration Act 1958 (Cth) – whether Tribunal failed to give particulars of information which might be the reason or part of the reason for the Tribunal to affirm the decision under review – information in question was country information – excluded from operation of s 424A by s 424A(3) – s 424AA did not oblige Tribunal to provide information prescribed in s 424A(3) – Tribunal provided particulars of such information regardless – no breach of s 424AA – application dismissed
Migration Act 1958 (Cth) s 424A, s 424AA, s 441A
Migration Amendment (Review Provisions) Act 2007 (Cth)
Migration Legislation Amendment Act (No 1) 1998 (Cth)
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 applied
Jess v Scott (1986) 12 FCR 187 cited
SZITH v Minister for Immigration and Citizenship (2008) 105 ALD 541 cited
SZLML v Minister for Immigration and Citizenship [2009] FCA 83 cited
SZLTC v Minister for Immigration and Citizenship [2007] FMCA 384 referred to
SZLWI v Minister for Immigration and Citizenship [2008] FCA 1330 cited
SZLXI v Minister for Immigration and Citizenship [2008] FCA 1270 cited
SZMAE v Minister for Immigration and Citizenship [2008] FCA 1701 cited
SZMMP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD 1957 of 2008
LANDER J
17 MARCH 2009
ADELAIDE (HEARD IN SYDNEY)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 1957 of 2008

BETWEEN:
SZMMP
Applicant

AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

LANDER J

DATE OF ORDER:

17 MARCH 2009

WHERE MADE:

ADELAIDE (HEARD IN SYDNEY))

THE COURT ORDERS THAT:
1.The application for an extension of time to file a notice of appeal be dismissed.
2.The applicant pay the first respondent’s costs.

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 1957 of 2008

BETWEEN:
SZMMP
Applicant

AND:
MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

LANDER J

DATE:

17 MARCH 2009

PLACE:

ADELAIDE (HEARD IN SYDNEY)

REASONS FOR JUDGMENT

This is an application for an extension of time to file and serve a notice of appeal.
The applicant, who is a citizen of the People’s Republic of China arrived in Australia on 12 December 2007. On 25 January 2008 he applied…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] FCA 233
Decision Date: 17 March 2009

CaseChat Overview and Summary

The case of Williams v Construction, Forestry, Mining and Energy Union involved a dispute between Williams, an employee, and the Construction, Forestry, Mining and Energy Union, his former employer. The matter was before the Federal Court of Australia, where Williams sought an extension of time to file a notice of appeal against a decision made by a lower court. The crux of the matter was whether the Court should grant Williams' application for an extension of time, considering the circumstances under which the delay occurred.

The legal issues before the Court were primarily centred on the rules governing the timeliness of appeals and the discretion of the Court to extend such deadlines. The Court had to assess whether the delay in filing the notice of appeal was excusable and whether any extension would result in injustice or unfairness to the opposing party. It also considered whether there were exceptional circumstances justifying an extension of time.

In its reasoning, the Court found that Williams' delay in filing the notice of appeal was not excusable. The Court noted that while there were delays in the proceedings below, these did not sufficiently justify the late filing of the notice of appeal. The Court emphasised that the timeliness of appeals is crucial to maintain the efficiency and fairness of the judicial process. Consequently, the Court dismissed the application for an extension of time. Additionally, the Court awarded costs to the respondent, the Union, for the unnecessary delay caused by Williams’ application.

The Court’s orders were straightforward: the application for an extension of time was dismissed, and Williams was directed to pay the Union’s costs associated with the application. This decision reinforces the importance of adhering to procedural timelines in the appellate process and highlights the Court's reluctance to extend such deadlines without compelling justification.

Orders

Orders of the court

1. The application for an extension of time to file a notice of appeal be dismissed.

2. The applicant pay the first respondent’s costs.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

LANDER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LANDER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1957 of 2008

JUDGE:	LANDER J
DATE OF ORDER:	17 MARCH 2009
WHERE MADE:	ADELAIDE (HEARD IN SYDNEY))

JUDGE:	LANDER J
DATE:	17 MARCH 2009
PLACE:	ADELAIDE (HEARD IN SYDNEY)