FEDERAL COURT OF AUSTRALIA

MZWUL v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 563

MIGRATION – application for leave to appeal – application for extension of time within which to file and serve a notice of appeal – proposed appeal doomed to fail – application refused

MZWUL & MZWUM v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

VID 326 of 2005

MARSHALL J

5 MAY 2005

MELBOURNE

THE COURT ORDERS THAT:

1. The application for an extension of time within which to appeal from a judgment of the Federal Magistrates Court be dismissed. 
2. The applicant 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                     The applicants have applied for an extension of time within which to appeal from a judgment of the Federal Magistrates Court given on 17 February 2005.

2                     The first applicant (hereinafter called “the applicant”) filed his application, which included an application for leave to appeal, on 11 April 2005.  I put to one side whether leave to appeal is required on the assumption that the judgment appealed from is an interlocutory one.

3                     If the applicant was entitled to appeal, as of right, the time for the filing of any notice of appeal ended on 10 March 2005.  Consequently the application was filed one month late.  Under O 52 r 15(2) the Court may extend the time within which to file a notice of appeal for special reasons.  One month is not an inordinate delay but the applicant must still demonstrate a reason sufficient to justify a departure from the normal rule that an appeal must be lodged within the time allowed;  see Jess v Scat (1986) 12 FCR 187 at 195.

4                     The Federal Magistrate dismissed the applicant’s application because the applicant did not appear before him on the day they were listed for hearing.

5                     In his affidavit in support of his application for an extension of time under which to appeal from the judgment of the Federal Magistrate, the applicant merely stated that he was “not satisfied” with his Honour’s “decision of my judicial review application”.  He further stated that his Honour “did not consider my grounds”.

6                     In the circumstances, the Court refuses to extend the time within which the appeal can be filed.  First, the applicant has not given any reason for the one month delay.  Second, it would be futile to extend the time because the appeal is doomed to fail.  The applicant has not identified any error in the reasons of the Federal Magistrate or given any excuse for his non-attendance before the Federal Magistrates Court.

7                     The application is dismissed, with costs.

Associate:

Dated:              5 May 2005