NASJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 80

FEDERAL COURT OF AUSTRALIA

NASJ of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 80

NASJ OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1374 OF 2002 LINDGREN J 7 FEBRUARY 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1374 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NASJ OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL

AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 7 FEBRUARY 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for extension of time be refused.

2. The applicant pay the respondent's costs of the application for extension of time.

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

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1374 OF 2002

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: NASJ OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL

AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 7 FEBRUARY 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION 1 The applicant seeks an extension of time in which to file a notice of appeal against orders made by the Federal Magistrates Court of Australia on 21 November 2002. The 21 day period for the filing of such a notice of appeal expired on 12 December 2002. The applicant filed his application for extension of time which commenced this proceeding on 18 December 2002. Annexed to the application for extension of time was a draft notice of appeal. 2 The applicant was six days late. It is not suggested that the respondent Minister ("the Minister") would suffer any prejudice if an extension of time were granted, but "special reasons" must be shown before an extension of time may be granted (see O 52 subr 15(2) of the Federal Court Rules) and the Minister submits that they are not shown here. 3 The applicant explains his delay by saying that he understood that the time allowed was 28 days. There is no affidavit evidence to this effect. The applicant has made a statement to the effect described from the bar table, but I have no reason to doubt the correctness of his statement. 4 The application for extension of time in the present case turns, in substance, on the question of whether there is an arguable appeal point. 5 The draft notice of appeal states the following grounds of appeal (solecisms included): "The appellant is aggrieved because the RRT [a reference to the Refugee Review Tribunal] did not render the applicant time and opportunity to provide evidence of his claims of being a refugee, and hence was unrealistic and biased in deciding the fate of the applicant. The applicant has real chance of persecution should he return to his country, which was irresponsibly ignored by the Tribunal and hence erred in law, in accordance with section 476(e) of the Migration Act 1958." The paragraph which was formerly par 476(1)(e) no longer forms part of the Migration Act 1958 (Cth) ("the Act"). The application before the Refugee Review Tribunal ("the Tribunal") was an application for review of a decision of a delegate of the Minister refusing the applicant a protection visa, and the application before the Federal Magistrates Court was for review of the Tribunal's decision.