Badu v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 486

FEDERAL COURT OF AUSTRALIA

Badu v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 486 PATRICIA BADU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 386 OF 2005 WHITLAM J 11 APRIL 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 386 OF 2005

BETWEEN: PATRICIA BADU

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WHITLAM J

DATE OF ORDER: 11 APRIL 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The time to file and serve notice of appeal from the judgment of the Federal Magistrates Court given on 18 February 2004 be extended to 15 March 2005. 2. The draft notice of appeal annexed to the affidavit of the applicant made on 14 March 2005 be treated as the notice of appeal. 3. Costs of the application for an extension of time be each party's costs of the appeal. 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 NSD 386 OF 2005

BETWEEN: PATRICIA BADU

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: WHITLAM J

DATE: 11 APRIL 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for leave to file and serve a notice of appeal out of time. It is an unusual case. The judgment the subject of the application was delivered on 18 February 2004 in the Federal Magistrates Court when Scarlett FM gave reasons for dismissing an application to review a decision of the Migration Review Tribunal ('Tribunal'). The affidavit in support of the present application was made on 14 March 2005 and annexes a draft notice of appeal. In that affidavit the applicant states that, when the Federal Magistrate dismissed her application, he informed her that if she intended to appeal she had 28 days in which to do so. That evidence stands uncontradicted. It was admitted without objection, and no application to cross‑examine the deponent was made. 2 Nonetheless, the solicitor for the respondent submits that I do not necessarily have to accept the applicant's uncorroborated statement. Where an experienced Federal Magistrate gave reasons orally, it is said to be unlikely that he would give a party appearing in person an incorrect indication of the time required for appeal. In addition, the solicitor for the respondent relies on the curious fact disclosed in the affidavit that the applicant attended at the Registry of this Court to file a notice of appeal prepared by her solicitor on Friday, 11 March 2005. She was too late. The Registry was closed, and for that reason she had to return on the Monday. (Being now out of time, the applicant had herself to sign the present application.) Since the notice of appeal had been settled by the solicitor appearing for her this afternoon, it is unlikely in those circumstances, it is submitted, that she would on Friday, 11 March have entertained any real doubt about the time she had in which to appeal. That may be so. Nonetheless, I have to accept that the statement was made. Notwithstanding the maxim, ignorantia legis non excusat, the fact is that the delay in this case is (to persist with Latinisms) de minimis. 3 That is not of course the test. The point in allowing extra time to appeal is to ensure that justice can be done. That will normally require that any appeal grounds be arguable. In this case, the appeal grounds are not hopeless but they are certainly going to be difficult to establish. Broadly speaking, they are (1) that the Tribunal misconstrued the applicable visa criterion, and (2) that the Tribunal denied the applicant natural justice. As to the criterion ground, the solicitor for the respondent contends that the Tribunal's construction seems consistent with the requirements of the Migration Regulations. That appears to be so, notwithstanding the somewhat looser language used by the Federal Magistrate. The natural justice point is superficially interesting. The Tribunal allegedly never told the applicant that her Departmental file had been destroyed. It is also complicated by the fact that the new natural justice provisions in Div 5 of Pt 5 of the Migration Act 1958 apply in this case. The solicitor for the respondent submits that, even if there were a procedural irregularity, it could not be productive of unfairness in circumstances where the applicant could not meet the applicable criterion. Secondly, he says that Div 5 is a code. Thirdly, the solicitor for the respondent says that there is no statement of what the applicant would have done, had she known the correct situation in relation to the destruction of the file. No doubt, these are all matters that can be agitated on an appeal. It may even be that further evidence is received on the appeal. This case would certainly seem to be one that requires such further evidence if it is to have any real prospects of success. 4 The case is a borderline one, but in the circumstances I propose to allow the extra time for the appeal to be instituted. I shall also order that the draft notice of appeal annexed to the applicant's affidavit made on 14 March 2005 be treated as the notice of appeal. The costs of this application should be each party's costs of the appeal.