FEDERAL COURT OF AUSTRALIA

SZDUE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 898

SZDUE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD 648 of 2005

BRANSON J

23 JUNE 2005

SYDNEY

THE COURT ORDERS THAT:

1.                  The applicant have leave to file and serve a notice of appeal from the judgment of the Federal Magistrates Court pronounced on 5 April 2005 within 21 days from today’s date.

2.                  The costs of this application be costs in the appeal.

REASONS FOR JUDGMENT

1                     The applicant seeks an extension of time in which to file and serve a notice of appeal.  The applicant wishes to appeal from a judgment of the Federal Magistrates Court pronounced on 5 April 2005.  The application must be considered under O 52 r 15(2).  That rule provides that for special reasons the Court may at any time give leave to file and serve a notice of appeal.  The requirement that there be special reasons requires no more than that there be a ground that justifies departure from the general rule in the particular case.

2                     Ordinarily a notice of appeal must be filed within 21 days after the date of the pronouncement of the judgment of the Court.  In this case the reasons for judgment of the Federal Magistrates Court were not available to the applicant in writing within 21 days after the pronouncement of the judgment.  The application for an extension of time was made on the twenty-second day after the judgment was pronounced.  I find that these are grounds sufficient to justify a departure in this case from the general rule.

3                     I therefore consider that it is open to the Court to grant an extension of time.  The extension sought should be granted if the appeal itself can be shown to have any prospects of success.  In my view the proposed appeal does have prospects of success, although not for the reasons identified by the applicant in her draft notice of appeal. 

4                     The reasons for decision of the Tribunal reveal that it took evidence not only from the applicant but also from the applicant's son, who is a resident of Australia.  The reasons for decision of the Tribunal are open to be understood as showing that it regarded aspects of the evidence of the applicant's son as a reason or part of the reason for its decision.  In its written reasons for decision the Tribunal said:

‘While the Tribunal accepts the applicant’s claim that she belongs to a particular social group, namely a widowed, elderly Indo‑Fijian woman, a claim based upon Hindu social custom which requires that the responsibility for a widow is vested in the eldest son and not the widow’s daughters. On the premature death (as in this case) of the eldest son, the responsibility falls on the next eldest son etc.

The Tribunal does not accept her claim that she cannot expect adequate family support if she returns to Fiji, nor that she has a well founded fear as a result of being a member of this group. If she was totally dependent upon the generosity of her children in Fiji, her claim would have more weight. However, the Tribunal noted the evidence of her eldest son who is resident in Australia, that he has continued to send money to help support his mother in Fiji, and has enabled her to make ten visits to Australia to see her family since 1985.

There is no evidence that the applicant could not be assisted by her surviving son to finance a modest but adequate life style in Fiji. Consequently, the Tribunal believes that there is no reason for it to conclude that the family cannot address the issue of their mother’s accommodation in a more cooperative way and determine a satisfactory outcome.’

5                     It therefore seems to me to be open to the applicant to argue that the decision of the Federal Magistrates Court is affected by jurisdictional error having regard to the decision of the High Court of Australia in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24.  I note that this decision of the High Court was published later than the judgment of the Federal Magistrates Court.

6                     For the above reason I consider that doubt does attend the judgment of the Federal Magistrates Court.  I therefore grant the applicant an extension of time in which she may file a notice of appeal.  The applicant is to file and serve her notice of appeal within 21 days from today’s date. 

7                     I note incidentally that paragraphs 46 to 47 of his Honour’s reasons for judgment might suggest that the judgment of the Federal Magistrates Court was interlocutory.  If the judgment of the Federal Magistrates Court were an interlocutory judgment the applicant would additionally require leave to appeal (s 24(1A) of the Federal Court of Australia Act 1976 (Cth)).  However, the true position with respect to a judgment of the kind published by the Federal Magistrates Court in this case is outlined and explained in SZAQL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 759 at [3]‑[6].

Associate:

Dated:              30 June 2005