STWB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1165

FEDERAL COURT OF AUSTRALIA

STWB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1165 STWB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS No S 146 of 2004 FINN J ADELAIDE 10 SEPTEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 146 OF 2004

BETWEEN: STWB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FINN J

DATE OF ORDER: 10 SEPTEMBER 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application for leave to file and serve a notice of appeal be refused.

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

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

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 146 OF 2004

BETWEEN: STWB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: FINN J

DATE: 10 SEPTEMBER 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application under O 52 r 15(2) of the Federal Court Rules for leave to file and serve a notice of appeal out of time. It is being determined, by consent, on the papers: cf O 52 r 15A. 2 The application was filed only eleven days after the expiry of the twenty-one day appeal period. The explanation given for the delay in seeking to appeal is that the applicant had not been provided with a copy of the primary judge's reasons by his legal adviser. 3 Ordinarily one would view an application in such circumstances with some sympathy. The defaults of a legal adviser should not too readily be visited on his or her client where the delay is not a serious one and there is a genuine issue to be litigated: see Jess v Scott (1986) 12 FCR 187; WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [7]. 4 Nonetheless, in determining whether there are "special reasons" for O 52 r 15(2) purposes which justify a departure from the ordinary appeal period prescribed in the Rules, it is necessary to have some regard to the applicant's prospects on the appeal if leave is given. 5 As Bennett J observed in Hasan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 788 at [27]: "When the Court forms the view that the applicant does not have an arguable case, the reason given for refusing to extend time can be couched in various ways. For example, in Jackamarra v Krakouer [1998] HCA 27 at [7], Brennan CJ and McHugh J used the expression whether 'the Court can be satisfied that the appeal is so devoid of merit that it will be futile to extend time'. In NAII v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1008 at [8], Whitlam J said: 'I am firmly convinced on the materials before me that the appeal would be totally fruitless'. His Honour held that there was no reason why the discretion under Order 52 rule 15 should be exercised in the applicant's favour. In WAGL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 595, French J observed (at [10]) that in circumstances where there did not appear to be any reviewable error on the part of the Tribunal 'it would be a waste of time granting an extension of time within which to appeal'. In Rahmatullah v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 132, Finn J looked to whether the question was 'so unarguable that any appeal is doomed to failure'. In SZAAK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 702, Gyles J said that he was satisfied that the applicant 'has not any arguable ground of appeal' in refusing to extend time under Order 52 rule 15."