Applicant NARE of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1248

FEDERAL COURT OF AUSTRALIA

Applicant NARE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1248

APPLICANT NARE OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 325 of 2003

ALLSOP J
7 NOVEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 325 of 2003

BETWEEN:	APPLICANT NARE OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	ALLSOP J
DATE OF ORDER:	7 NOVEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Time in which the applicant may file and serve a notice of appeal from the orders of Moore J made on 20 March 2003 at Sydney be extended to Friday 14 November 2003, such notice of appeal to be substantially in terms of the amended notice of appeal being annexure A to the affidavit of the applicant sworn 13 August 2003 and filed on 14 August 2003.

2.The costs of the application for extension of time be costs in the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 325 of 2003

BETWEEN:	APPLICANT NARE OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	ALLSOP J
DATE:	7 NOVEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal.

2. The background to this application is contained in my reasons for judgment delivered on 5 June 2003.  Those reasons should be read with these reasons.  After delivery of those reasons I made another order under Order 80 of the Federal Court Rules for the provision of assistance to the applicant in drafting an amended notice of appeal and full written submissions.  Counsel agreed to undertake that task.  On 13 August 2003 the applicant filed an affidavit annexing an amended notice of appeal which coherently set out three grounds of appeal.  These grounds of appeal were:

   The learned primary judge erred in that

   1.he failed to determine that there was a lack of procedural fairness in the conduct of the hearing in the Refugee Review Tribunal (“the RRT”) in that the RRT took into account Independent Country Information” that was adverse to my claim, without giving me an opportunity to comment on it.  The information which the RRT took into account in this regard appears at page 580.5 of the Court Book.

   2.he failed to determine that there was a lack of procedural fairness in the conduct of the hearing in the Refugee Review Tribunal (“the RRT”) in that the RRT took into account Independent Country Information” that was adverse to my claim, without giving me an adequate opportunity to comment on it.  The Tribunal mentioned the information to me, but did  not give me the opportunity to comment on it.  The information which the RRT took into account in this regard appears at page 579.9-580.1 of the Court Book.

   3.he failed to determine that the Refugee Review Tribunal erred in that it failed to consider that even if, my former de facto husband was killed for non-political reasons, (which I deny) the threats and persecution which I received could still have been for political or other reasons coming within the Convention definitions.

3. Coherent submissions were filed in respect of these grounds.  The parties thereafter put a number of further submissions in support of their respective positions.

4. The applicant has also filed a long affidavit sworn on 7 October 2003 two early paragraphs of which read as follows:

   3.Up to the swearing of this affidavit, I have not disclosed either to the Department of Immigration, Multicultural and Indigenous Affairs, nor to the Refugee Review Tribunal, nor to this Court, what I believe to be the source of the persecution which I fear, if I were to return to Lithuania.

   4.The reason why I have not disclosed this is because of my fear.  My fear has been that that [sic] firstly if I were to disclose it in Australia, I would still be at risk in Australia, and secondly, if I am obliged to return to Lithuania, my two sons and I would be at a much greater risk of persecution including assassination.

5. The task which I must undertake is to assess whether the grounds put forward are sufficiently arguable to warrant the grant of the extension of time for leave to appeal.

6. It is not my task to decide the appeal.  Nor is it my task to assess whether the applicant would be granted leave to appeal if all such appeals were subject to a requirement of leave.  The Parliament has granted a statutory right of appeal.  That right is subject to the timeous compliance with the Rules of the court.  The discretion before me is whether I should extend the time to file and serve the notice of appeal in circumstances of an innocent misunderstanding of the relevant time period.  That discretion is qualitatively different from one in circumstances where there is no right of appeal and only an appeal by leave.

7. I have considered the submissions of the parties.  Whilst I am far from persuaded of the likelihood of success of the applicant’s appeal, or of the relevance of the affidavit filed out of time, I am not prepared to conclude that the grounds identified in the draft amended notice of appeal annexed to the applicant’s affidavit of 13 August are doomed to fail.

8. In the circumstances of the explanation for the delay, I propose to extend the time for filing and serving a notice of appeal substantially in the form of annexure A to the affidavit of the applicant dated 13 August 2003 for seven days from today’s date.

9. Costs of the application will be costs in the appeal.  Much of the difficulty involved in the application was a result of the applicant being a litigant in person.  If, as the respondent says, the appeal will fail, the respondent will get his costs.

10. The submissions which have been filed provide a foundation for the final submissions on appeal.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:             7 November 2003

The applicant appeared in person.

On 29 May 2003 Mr M Leeming appeared as amicus curiae.

Also, Mr I Archibald filed submissions on behalf of the applicant, pursuant to O80 of the Federal Court Rules.

Solicitor for the Respondent:

Clayton Utz

Date of Hearing:

28 April 2003, 2 and 29 May 2003

Date of last submissions:

20 October 2003

Date of Judgment:

7 November 2003