NAKL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 147

FEDERAL COURT OF AUSTRALIA

NAKL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 147 Migration Act 1958 (Cth) s 424A(3) Ariaee v Minister for Immigration & Multicultural Affairs [2001] FCA 1627 cited Muin v Refugee Review Tribunal (2002) 190 ALR 601 cited NADR of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 293 referred to VAS v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 350 referred to NAKL v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 2000 OF 2003 HELY J 10 FEBRUARY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 2000 OF 2003

BETWEEN: NAKL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 10 FEBRUARY 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed with costs. 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 2000 OF 2003

BETWEEN: NAKL

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: HELY J

DATE: 10 FEBRUARY 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for an extension of time within which to file and serve a Notice of Appeal from the decision of Federal Magistrate Raphael which was given on 28 October 2003. The appeal period expired on 18 November 2003. On 24 November 2003 an application for an extension of time to file and serve a Notice of Appeal was lodged but the application was not accompanied by a draft Notice of Appeal. 2 The delay in seeking an extension of time was less than a week. The applicant seeks to explain that delay upon the basis that the applicant did not receive written reasons from the Federal Magistrates Court until 19 November 2003. Although the applicant was present in the Federal Magistrates Court when a decision was given and the Magistrate's reasons were pronounced, the applicant does not speak, and cannot understand, the English language. 3 If the only impediment to the granting of an extension of time was the length of delay I would have been prepared to grant an extension. However, the authorities are clear that an extension of time should be refused if an applicant is unable to demonstrate any arguable ground of appeal, because in those circumstances the grant of an extension of time would be futile: see, for example, Ariaee v Minister for Immigration & Multicultural Affairs [2001] FCA 1627 at [12]. 4 The application came before me on 2 December 2003 and 11 December 2003. On each of those occasions, over the Minister's opposition, I adjourned the matter to afford the applicant an opportunity of securing legal advice if he could, and the opportunity to file a document detailing the grounds of appeal, so as to demonstrate that the grant of an extension of time would not be an exercise in futility. 5 On 2 February 2004 a document styled 'Applicant's Submission' was filed. This document details the matters on which the applicant wishes to rely, in the event that an extension of time within which to appeal is granted.