Applicant A152 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 612

FEDERAL COURT OF AUSTRALIA

Applicant A152 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 612

APPLICANT A152 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS; MEMBER, REFUGEE REVIEW TRIBUNAL & PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL

S 79 of 2004

MANSFIELD J
6 MAY 2004
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 79 OF 2004

BETWEEN:

APPLICANT A 152 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

6 MAY 2004

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The application for an extension of time within which the applicant may appeal from the orders of the Court made on 26 March 2004 is refused.

2.        The applicant pay to the first respondent the costs of the application.

3.        No order for costs of the second and third respondents.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 79 OF 2004

BETWEEN:

APPLICANT A 152 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
FIRST RESPONDENT

MEMBER, REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

PRINCIPAL MEMBER, REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:	MANSFIELD J
DATE:	6 MAY 2004
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant commenced proceedings in the High Court on 19 March 2003, in respect of a decision of the Refugee Review Tribunal (the Tribunal) of 25 October 2002.  On 11 June 2003 the matter was remitted to this Court for hearing.  On 26 March 2004 the applicant’s application in this Court was dismissed.  It was dismissed because the applicant had not complied with orders of the Court and had not given instructions to his then solicitors. 

2. On 20 April 2004 the applicant applied for an extension of time within which he might appeal from that order.  His supporting affidavit also sought an order that the appeal, if he was given an extension of time within which to appeal, be transferred to the New South Wales District Registry of the Court. 

3. I have given the applicant the opportunity to seek an adjournment of today's hearing to adduce further evidence in support of his application for an extension of time within which to appeal.  Bearing in mind the relatively brief period of delay after the expiration of the 21 day period allowed under the Federal Court Rules (assuming in his favour that the order of 26 March 2004 was a final order), I would normally be sympathetic to any application for an extension of time.  Order 52 r 15(2) permits me to extend the time for special reasons.  Jess v Scott (1986) 12 FCR 187 at 195 explains what is meant by ‘special reasons’:

   ‘What is needed to justify an extension of time is indicated in r 15(2) by the words “for special reasons”.  It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days.  In that context, the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is twenty-one days.  But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case.  Such a ground is a special reason because it takes the case out of the ordinary.  We do not think the use of the expression “for special reasons” implies something narrower than this.’

4. I accept that the applicant may not have been notified of the dismissal of his application on the date it was dismissed, and had he been, he may have applied for the extension of time within 21 days of being notified of the dismissal of his application.  However, I do not think the material he has adduced explains at all, in a satisfactory way, why he did not comply with the directions of the Court or why he did not respond to the requests of his then solicitors for instructions. 

5. The applicant’s affidavit asserts that he received a letter from his former solicitors, on 20 February 2004, and it attaches a copy of a letter of 16 December 2003 from his former solicitors.  The letter enclosed the directions given on 10 December 2003.  The letter is addressed to the applicant at the same address as his notice of motion and affidavit.  He does not assert having responded to those directions or to having contacted his solicitors.  There is, therefore, no satisfactory reason given as to why he did not comply with the directions or make any attempt to do so.  Nor is there any satisfactory reason for his apparent failure to have communicated with his then solicitors or to have given them instructions.

6. I have also considered whether the material demonstrates any prospect of showing error on the part of the Tribunal.  To succeed he must be able to demonstrate jurisdictional error on its part.  His affidavit does not touch on that issue.

7. The draft notice of appeal appears to me largely to demonstrate merely an attempt to reargue the merits of the Tribunal's reasons.  There are two grounds, which may seek to enliven a complaint that the Tribunal did not give him natural justice.  There is no material to support that.  There are only the assertions in the draft notice of appeal.  Accordingly there is nothing which indicates to me that, even if the applicant were given an extension of time to appeal, he would have any prospect of succeeding on the appeal. 

8. The application before the Court today has not been served on the first respondent.  The solicitor for the first respondent has indicated that the first respondent generally opposes any extension of time to appeal, except in special cases.  I proceed on the basis, in this instance, that the first respondent would not consent to the extension of time sought.  I have considered whether I should give the first respondent the opportunity to give specific instructions to her lawyers but I think that is unnecessary.

9. I am not persuaded that there are any special reasons for extending the time in which the applicant should be entitled to appeal.  The application for an extension of time to do so is therefore refused.  I do not need to deal with the application to transfer the appeal, if an extension of time were given, to the New South Wales District Registry.  The applicant should pay the costs of the application.  There is no order for costs of the second and third respondents.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             13 May 2004

Counsel for the Applicant:	The applicant appeared in person.
Counsel for the First Respondent:	Mr J van Lingen
Solicitor for the First Respondent:	Sparke Helmore
The Second and Third Respondents did not appear.
Date of Hearing:	6 May 2004
Date of Judgment:	6 May 2004