SZAIM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 341

FEDERAL COURT OF AUSTRALIA

SZAIM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 341

SZAIM v MINISTER FOR IMMIGRATION & MULTICULTURAL &

INDIGENOUS AFFAIRS N 211 of 2004 LINDGREN J 24 MARCH 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 211 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAIM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN

DATE OF ORDER: 24 MARCH 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. 3. The amount of the respondent's costs referred to in order 2 be fixed at $750. 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 211 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZAIM

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN

DATE: 24 MARCH 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant commenced this proceeding on 23 February 2004 by filing an application for an extension of time in which to file and serve a notice of appeal from a judgment of Driver FM given on 28 January 2004 in the Federal Magistrates Court of Australia ('FMCA'). 2 Federal Magistrate Driver dismissed the applicant's application to the FMCA for relief in respect of a decision of the Refugee Review Tribunal ('RRT) made on 21 February 2003 and handed down on 12 March 2003. By its decision the RRT affirmed a decision of a delegate of the respondent (respectively, 'the Delegate' and 'the Minister') not to grant the applicant a protection visa under the Migration Act 1958 (Cth). 3 The Court has jurisdiction to hear and determine appeals from judgments of the FMCA exercising original jurisdiction under a law of the Commonwealth, except certain specified laws of the Commonwealth: Federal Court of Australia Act 1976 (Cth) ('FCA Act'), s 24(1)(d). A notice of appeal must be filed and served within 21 days after the date when the judgment appealed from was pronounced: O 52 r 15(1)(a)(i) of the Federal Court Rules. However, the Court or a judge may, for special reasons, at any time give leave to file and serve a notice of appeal: O 52 r 15(2). An application for an extension of time within which to institute an appeal to the Court may be heard by a single Judge or by a Full Court: FCA Act s 25(2)(b). 4 The 21-day period in the present case expired on 18 February 2004. According to his affidavit in support of the application for extension of time, the applicant states that he was under the impression that he had 28 days in which to appeal. According to that affidavit, on 19 February 2004 (one day outside the 21-day period) he attended at the Registry of the Court and was told that the period was 21 days. He was given the necessary forms to enable him to apply for an extension of time. 5 On the hearing this morning, the applicant said from the Bar table, when asked by me how he gained the impression that the time allowed was 28 days, that someone in the Registry told him that it was 28 days. This had not been mentioned in his affidavit. He said that he had telephoned the Registry, apparently shortly after the decision of the FMCA was given, and thought that he had misunderstood or been misunderstood (his account of the alleged telephone conversation was unclear). He was not able to assist by way of identifying the member of the Court's Registry staff who, he says, told him that he had 28 days. He says that he thinks it was a woman. 6 I do not accept the applicant's allegation. If his account is true, it would have been a most material thing for him to have mentioned in his affidavit. In addition, the Registry staff are well trained in relation to what they may inform inquirers. I note that, according to the applicant's affidavit, he was correctly informed that the relevant period was 21 days when he attended the Registry office on 19 February 2004. 7 No doubt a mistake is always possible but the omission of the allegation from the applicant's affidavit, the vagueness of the account of the telephone conversation which he has given to me, and the training which Registry staff receive in the relevant respect, combine to lead me not to accept his allegation from the Bar table that he was told that he had 28 days in which to appeal. 8 The applicant was, however, only one day late in his attendance at Court for the purpose of filing a notice of appeal, and he filed the present application for an extension of time only five days outside the 21-day period. The case is a clear one for the granting of an extension of time if all that mattered was the degree of lateness.