WAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 265

FEDERAL COURT OF AUSTRALIA

WAGM of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 265

Jess v Scott (1986) 12 FCR 187 followed WAGM OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W128 of 2002 MARSHALL, WEINBERG and JACOBSON JJ PERTH 22 AUGUST 2002

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W128 of 2002

BETWEEN: WAGM OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: MARSHALL, WEINBERG and JACOBSON JJ

DATE OF ORDER: 22 AUGUST 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of 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

WESTERN AUSTRALIA DISTRICT REGISTRY W128 of 2002

BETWEEN: WAGM OF 2002

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: MARSHALL, WEINBERG and JACOBSON JJ

DATE: 22 AUGUST 2002

PLACE: PERTH

REASONS FOR JUDGMENT

THE COURT 1 On 9 April 2002, French J dismissed an application by the appellant for judicial review of a decision of the Refugee Review Tribunal ("the RRT"). The notice of appeal was filed on 1 May 2002, one day out of time. The appellant filed an application for leave to extend the time allowed to file and serve a notice of appeal. 2 Pursuant to O 52 r 15 of the rules of Court, the Court may "for special reasons" give leave to file and serve a notice of appeal out of time. The notice of appeal was filed only one day late because the appellant was ill during the 21 day time period allowed. Accordingly, we consider that a sufficient basis has been established to extend time: see Jess v Scott (1986) 12 FCR 187 at 195. We note that, although the respondent did not consent, the grant of such leave was not opposed. 3 The application before the primary judge was filed on 16 August 2001. It was dealt with in accordance with the provisions of the Migration Act 1958 (Cth) ("the Act") which applied prior to the amendments to the Act which took effect on 2 October 2001; see Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ("the 2001 Act"). Accordingly, this appeal does not raise for consideration the effect of the "privative clause" provisions inserted into the Act by the 2001 Act.