FEDERAL COURT OF AUSTRALIA

SZATC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1423

SZATC v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1304 of 2004

ALLSOP J

28 OCTOBER 2004

SYDNEY

THE COURT ORDERS THAT:

(1)     That the application for extension of time to file and serve a notice of appeal filed on 6 September 2004 be dismissed.

(2)     That the applicant for the extension of time pay the respondent's costs.

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

REASONS FOR JUDGMENT

1                     This is an application for extension of time to file and serve a notice of appeal.  The appeal that is sought to be filed is from the orders made by a Federal Magistrate on 11 August 2004.  On that day, the Federal Magistrate dismissed an application under s 39B of the Judiciary Act 1903 (Cth).  The Magistrate gave oral reasons; a written revised judgment was published on 27 August 2004. 

2                     The 21-day time limit for the filing and serving of a notice of appeal commenced on the date of the pronouncement of the orders by the Magistrate.  The applicant apparently understood that he could wait until receiving the written copy of the reasons before filing his appeal.  No notice of appeal was filed or served on or prior to 2 September.  On 6 September 2004, an application for extension of time to file and serve a notice of appeal was made.  This was, in effect, slightly under a week late. 

3                     The matter came before me for directions on 18 October.  I made clear to the applicant, through an interpreter, that he would need to persuade me of two things for me to make the order:  (1) an explanation as to the delay, and (2) that there was some arguable basis to the appeal. 

4                     The applicant is not legally assisted. 

5                     The affidavit in support of the application, also filed on 6 September, gives a brief explanation as to the delay.  Notwithstanding its brevity, the explanation for the delay is satisfactory and understandable.  A mistake was made by an unrepresented litigant as to the precise starting point for the running of time for an appeal.  If I thought that there was some arguable ground of appeal I would overlook the delay without hesitation. Thus, it is to the question of some arguable ground that I need to turn.

6                     The affidavit of 6 September annexes a draft notice of appeal in the following terms:

2.      The Single judge of the Federal Magistrates Court in her Honors Judgment delivered on 11 August 2004 failed to find an error of law, Jurisdictional error, Procedural fairness and relief under Section 39B of the Judiciary Act 1903.

3.      The grounds of relief are very much similar with a recent High Court Judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 23002) Catchwords: Immigration – Refugee – Protection visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Register of Tribunal for purpose of review – Nature and extent of obligation – Migration Act 1958 (Cth), ss 148 (s), 424 (1).

4.      The Honourable trial judge erred in considering the real state of affairs of my application. I have feared harm. And also the present ruling government fail to protect politicians life, which is worldwide concern today. Honourable trial judge did not take it into consideration.

5.      I also mention Plaintiff S 157/2002 v Commonwealth of Australia [2003] HCA (4 February 2003).

6.      Recent Federal Court of Australia judgement: SGDB v Minister for Immigration & Multicultural and Indigenous Affairs [2003] FCA 74 (14 February 2003)

7                     It can be seen that these are generalised propositions bearing no relationship whatsoever to this particular applicant's circumstances.  I notice in passing, although it forms no part of my reasoning, that these are paragraphs in terms that find their way into numerous notices of appeal in this court.

8                     I have read the learned Federal Magistrate’s reasons.  I have done what I can to identify error in those reasons by reference to the grounds of appeal and by reference to a critical reading of them. I am unable to identify any legitimate argument.  In these circumstances, in my view, it would be an exercise in futility to make an order extending time for the filing and serving of a notice of appeal.  Thus, I propose to dismiss the application.

9                     It should be understood by the applicant that this is not a final dealing with any appeal.  It is an interlocutory judgment in respect of which I refuse to exercise a discretion because I am not persuaded that there is any arguable error in the Federal Magistrate's reasons.

10                  For the above reasons the application for an extension of time to file and serve a notice of appeal is dismissed. I see no basis than to otherwise order that costs follow the event and order that the applicant pay the respondent's costs.  Therefore, the orders of the Court are:

(1)     That the application for extension of time to file and serve a notice of appeal filed on 6 September 2004 be dismissed.

(2)     That the applicant for the extension of time pay the respondent's costs.

Associate:

Dated:              3 November 2004