FEDERAL COURT OF AUSTRALIA

Applicant S1647/2003 v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 417

APPLICANT S1647/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1887 OF 2004

STONE J

15 APRIL 2005

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                       The application for an extension of time under O 52 r 15(2) be dismissed.

2.                       The applicant mother pay the respondent’s costs of the application.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Introduction

1                     The applicants, a mother and son, seek an extension of time within which to file and serve a notice of appeal from a decision of Barnes FM given on 23 November 2004.  Her Honour dismissed the applicants’ application for review of a decision of the Refugee Review Tribunal (‘Tribunal’) given on 11 June 1998.  The Federal Magistrate found that there was no evidence of jurisdictional error in the Tribunal’s reasons for decision.   

Background

2                     The applicants arrived in Australia on 22 March 1997. They both applied for protection visas on 19 June 1997 although only the mother made specific claims under the Refugees Convention.  For this reason I shall refer to her as ‘the applicant’.  A delegate of the respondent refused their applications on 25 June 1997 and they applied to the Tribunal for a review of that decision on 24 July 1997.  The Tribunal handed down its decision on 11 June 1998. 

3                     On 10 September 1998, the applicant became a member of the class that filed the class action considered by the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601 (‘Muin’).  The High Court made orders that permitted the represented parties to apply individually for orders nisi and ordered that any such application be remitted to this Court on filing.  Emmett J dismissed the applicant’s application on 20 February 2004. 

4                     On 15 March 2004 the applicant filed an application for judicial review and an amended application on 18 October 2004 in the Federal Magistrates Court.  As noted above, the amended application was dismissed on 23 November 2004.  On 17 December 2004 the applicants filed an application for an extension of time to file and serve a notice of appeal from the Federal Magistrate’s decision.

This application

5                     This Court has jurisdiction to hear appeals from judgments of the Federal Magistrates Court.  A notice of appeal must be filed within 21 days of the pronouncement of the judgment appealed from; O 52 r 15(1)(a)(i) of the Federal Court Rules.  In this case that period expired on 14 December 2004.  This Court may give leave to appeal outside the prescribed period for ‘special reasons’; O 52 r 15(2).  In considering whether leave should be granted the Court has regard to the extent of the delay in filing a notice of appeal, any prejudice to the respondent arising from the delay and the injustice to an applicant for leave should leave be denied; Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894. 

6                     The present application for leave to appeal from the Federal Magistrate’s decision is accompanied by an affidavit of the applicant sworn on 16 December 2004.  She states that her application was out of time because, not being legally represented, she was not aware of the relevant time limits.  She also stated that at the time of making her affidavit she did not have a copy of the Federal Magistrate’s reasons.   Given that the delay was only a matter of days I regard this as an acceptable explanation for the delay in filing a notice of appeal. 

7                     Even where there is an acceptable reason for delay, however, the issue of injustice to the parties in giving leave to appeal must be considered.  Crucial to this issue is the likelihood of the appeal succeeding.  An application for an extension of time within which to appeal should be refused if the appeal would have no or only very slight prospects of success: see Gallo v Dawson (No 2) (1992) 109 ALR 319; Deighton v Telstra Corporation Limited  [1997] FCA 1568; Kalaba v The Queen [1996] FCA 908; and Engler v Commissioner of Taxation [2002] FCA 620 per RD Nicholson J at [12].

8                     The draft notice of appeal does not assist.  It alleges jurisdictional error on the part of the Federal Magistrate but without giving particulars.  It refers to Muin, Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 and SGDB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 74.  It states that Muin is similar to the applicant’s case and implies that the others are similarly relevant, again without particulars.  The applicant did not provide any written submissions and, at the hearing, was also unable to assist.   

9                     This matter has much in common with the matter I considered in SZDZV v Minister for Immigration & Multicultural & Indigenous Affairs  [2005] FCA 416 (‘SZDZV’).  The Tribunal’s decision in this case, as in SZDZV, was made before the commencement of Schedule 1 of the Migration Legislation Amendment (Judicial Review) Act 2001 (‘Amendment Act’) on 2 October 2001.  Similarly the applicant’s participation in the Muin class action in September 1998 was ‘an application for judicial review of a decision’ under the Migration Act which was lodged before the commencement of Schedule 1 to the Amendment Act on 2 October 2001.  Accordingly the Migration Act as amended by the Amendment Act does not apply to that application; see SZDZV at [9].

10                  For reasons that I also gave in SZDZV at [10]-[11],the only basis on which the Federal Magistrate would be entitled to review the Tribunal’s decision is jurisdictional error.  Her Honour gave careful consideration to this question and after a detailed review of the Tribunal’s decision held that no jurisdictional error had been established.  Having reviewed both her Honour’s reasons and the Tribunal’s decision, I am of the opinion that an appeal from her Honour’s decision would have little or no chance of success.  I therefore dismiss the application for an extension of time.  In the circumstances, the applicant must pay the respondent’s costs.

Associate:

Dated:              15 April 2005