SZDQF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1728

FEDERAL COURT OF AUSTRALIA

SZDQF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1728 SZDQF v Minister for Immigration and Multicultural and Indigenous Affairs N 1736 of 2004 JACOBSON J 20 DECEMBER 2004 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1736 of 2004

BETWEEN: SZDQF

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE OF ORDER: 20 DECEMBER 2004

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal is refused.

2. The applicant to pay the 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

NEW SOUTH WALES DISTRICT REGISTRY N 1736 of 2004

BETWEEN: SZDQF

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: JACOBSON J

DATE: 20 DECEMBER 2004

PLACE: SYDNEY

REASONS FOR JUDGMENT

Introduction 1. This is an application for leave to appeal and for an extension of time to seek leave to appeal against the orders and judgment of Federal Magistrate Baumann dated 8 September 2004. On that date the learned Magistrate upheld the respondent's notice of objection to competency which was made pursuant to section 477(1A) of the Migration Act 1958 ("the Act") on the ground that the application was not filed within 28 days of the notification of the decision of the Refugee Review Tribunal ("the RRT") and dismissed the application for judicial review of the RRT's decision. 2. The applicant filed the present application on 24 November 2004, approximately eight weeks after the time provided for under the Federal Court Rules. The applicable rule is Order 52, Rule 5. 3. The applicant must establish special reasons for an extension of time to seek leave to appeal against the decision. In Jess v Scott (1986) 12 FCR 187 at 195, a Full Court stated that what is necessary to satisfy the test is to demonstrate circumstances which justify the departure from the general rule. In the particular case the ground must be such as to take the case out of the ordinary. 4. One of the most important factors in the exercise of the discretion is whether there is any prima facie strength to the proposed ground of appeal; see Howard v Australian Electoral Commission [2000] FCA 1767 per Branson J at [7]. 5. I will set out briefly the background in this matter and the reasons for the RRT and the Federal Magistrate, before turning to the present application.