Federal Court of Australia
FEDERAL COURT OF AUSTRALIA
SZEWS v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 233
SZEWS v Minister for Immigration & Multicultural & Indigenous Affairs AND Refugee Review Tribunal NSD 927 OF 2005 JACOBSON J SYDNEY 7 MARCH 2006
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD927 OF 2005
On appeal from a decision of Federal Magistrate Barnes
BETWEEN: SZEWS
APPLICANT
AND: Minister for Immigration & Multicultural & Indigenous Affairs
FIRST RESPONDENT
Refugee Review Tribunal
SECOND RESPONDENT
JUDGE: Jacobson J
DATE OF ORDER: 7 March 2006
WHERE MADE: SYDNEY
THE COURT ORDERS THAT: 1. The application for an extension of time in which to file a notice of appeal is refused. 2. The appellant pay the first respondent's costs.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY NSD927 OF 2005
On appeal from a decision of Federal Magistrate Barnes
BETWEEN: SZEWS
APPLICANT
AND: Minister for Immigration & Multicultural & Indigenous Affairs
FIRST RESPONDENT
Refugee Review Tribunal
SECOND RESPONDENT
JUDGE: Jacobson J
DATE: 7 March 2006
PLACE: SYDNEY
REASONS FOR JUDGMENT 1 This is an application for an extension of time in which to appeal from a decision of Federal Magistrate Barnes given on 17 May 2005 dismissing an application for a review of a decision of the Refugee Review Tribunal ("RRT") made on 13 February 1997. 2 The RRT affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. The last day for lodging a notice of appeal was 7 June 2005. A notice of appeal was filed in the registry on 9 June 2005, only two days after the time period limited by the rules. 3 The appellant was present at a directions hearing before me on 7 July 2005 when I ordered that the notice of appeal be treated as an application for an extension of time in which to file and serve a notice of appeal. 4 On that occasion I also ordered that the appellant file and serve the following: (a) an amended application for an extension of time in which to file and serve a notice of appeal; (b) an affidavit by the appellant clearly identifying the grounds upon which time should be extended; and (c) a draft notice of appeal clearly identifying the grounds of jurisdictional error relied upon and confirming particulars of evidence and every ground of review relied upon. 5 At the directions hearing I fixed the matter for hearing on 21 September 2005 but the hearing of the appeal was adjourned in order to determine whether issues under consideration by a Full Court would have any bearing upon the matters that might be raised in the present appeal. 6 Notwithstanding the substantial delay between the date of my directions and today's hearing, the appellant has failed to comply with the orders that I made. He appeared before me this morning in person assisted by an interpreter. He told me that he had engaged a migration agent in Melbourne, that he paid the agent $500 but the agent refused to act for him. He told me that he needs legal advice and he requested more time. The time period which he requested was two to three weeks. 7 For reasons which I will refer to later I consider that the extension of time sought by the appellant should not be granted. The delay in filing the notice of appeal is very short and ordinarily it would not be of any prejudice to the Minister to grant an extension of time resulting from the short delay. However, the Minister opposes an extension of time and submits that no special reasons have been offered by the appellant as to why I should extend time. 8 Counsel for the Minister submitted to me today that there is still no explanation for the failure to file the notice of appeal on time and counsel also pointed to the history of the proceedings which have been marked by delay in the past as well as by delay in and indeed, failure to comply with the directions which I made nine months ago. As the Court has observed, even if special circumstances are identified there is still a discretion to grant or refuse an extension of time. 9 One of the factors which is of particular importance 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]. Thus in order to grant an extension of time I would need to be satisfied at the very least, that there is an arguable case of jurisdictional error on the part of the RRT. I will set out briefly the background including a reference to the reasons of the RRT and the Federal Magistrate before dealing with the present application.
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