FEDERAL COURT OF AUSTRALIA MZYKI v Minister for Immigration and Citizenship [2011] FCA 974 Citation: MZYKI v Minister for Immigration and Citizenship [2011] FCA 974 Appeal from: MZYKI v Minister for Immigration and Citizenship [2011] FMCA 585 Parties: MZYKI v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: VID 700 of 2011 Judge: TRACEY J Date of judgment: 23 August 2011 Legislation: Migration Act 1958 (Cth) ss 476A, 477 Cases cited: SZODM v Minister for Immigration and Citizenship [2010] FCA 885 Date of hearing: 23 August 2011 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 7 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr C Warfe Solicitor for the First Respondents: Clayton Utz Counsel for the Second Respondent: The Second Respondent filed a submitting appearance IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 700 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZYKI Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: TRACEY J DATE OF ORDER: 23 AUGUST 2011 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the first respondent's costs of the application. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 700 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: MZYKI Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: TRACEY J DATE: 23 AUGUST 2011 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant applies for an extension of time within which to file and serve a notice of appeal from the judgment of the Federal Magistrates Court in MZYKI v Minister for Immigration and Citizenship [2011] FMCA 585. The judgment was handed down on 2 June 2011. The application was made on 29 June 2011. 2 In that decision a Federal Magistrate dismissed an application by the applicant for an extension of time within which he might file and serve an application to review a decision of the Refugee Review Tribunal ("the Tribunal"). On 16 September 2010 the Tribunal had affirmed a decision of a delegate of the Minister to refuse the applicant a protection visa. 3 The applicant submitted that a timely notice of appeal was not lodged in this Court because he mistakenly believed that he would have to pay a $100 fee to lodge an appeal and he lacked the necessary funds. 4 The Federal Magistrate's decision was made under s 477(2) of the Migration Act 1958 (Cth) ("the Act"). 5 Section 476A(3)(a) of the Act provides that an appeal may not be brought to this Court from a decision made by the Federal Magistrates Court under s 477(2). 6 The power of the Court to enlarge time is discretionary in nature. In the present circumstances the Court, whilst having sympathy for the applicant's predicament, must, in the exercise of its discretion, refuse the application for enlargement of time. This is because any enlargement would be pointless given that the Court lacks jurisdiction to entertain any appeal from the decision of the Federal Magistrate: see SZODM v Minister for Immigration and Citizenship [2010] FCA 885. 7 The application will be refused with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey. Associate: Dated: 23 August 2011