Applicant P40/2003 v Refugee Review Tribunal

[2004] FCA 1800

FEDERAL COURT OF AUSTRALIA

Applicant P40/2003 v Refugee Review Tribunal & Ors
[2004] FCA 1800

PRACTICE AND PROCEDURE – application for leave to file and serve notice of appeal out of time – whether special reasons exist.

Migration Act 1958 (Cth)
Federal Court Rules, O 52 r 15
Federal Court of Australia Regulations 2004, reg 10(2), 11

Muin v Refugee Review Tribunal (2002) 76 ALJR 966 referred to

APPLICANT P40/2003 v REFUGEE REVIEW TRIBUNAL, MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
and COMMONWEALTH OF AUSTRALIA

W191 of 2004

LEE J
PERTH
8 DECEMBER 2004

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 191 OF 2004

BETWEEN:

APPLICANT P40/2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:

LEE J

DATE OF ORDER:

8 DECEMBER 2004

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The time for filing a notice of appeal in this matter be extended to 9 August 2004 and the document received by the Registry by facsimile transmission on that date stand as the notice of appeal filed pursuant to that leave.

2.The amended notice of appeal marked by the Registry as received on 2 September 2004 stand as an amended notice of appeal filed on that date.

3.        Costs reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	191 OF 2004

BETWEEN:

APPLICANT P40/2003
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
SECOND RESPONDENT

COMMONWEALTH OF AUSTRALIA
THIRD RESPONDENT

JUDGE:	LEE J
DATE:	8 DECEMBER 2004
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an application for leave under O 52 r 15(2) of the Federal Court Rules (“the Rules”) to file and serve a notice of appeal after the expiry of 21 days from the date of a judgment of this Court, the period prescribed for that purpose by O 52 r 15(1)(a) of the Rules.  The application itself is made out of time under O 52 r 15(2) and therefore, “special reasons” must be shown before leave may be granted.

2. The applicant is a citizen of Sri Lanka.  She arrived in Australia on 28 July 1999 as the holder of a visitor’s visa. The applicant was accompanied by her Australian-born daughter, who is an Australian citizen. 

3. On 27 January 2000, upon expiration of her visa, the applicant lodged an application for a protection visa, on the ground that she would suffer persecution if she returned to Sri Lanka.

4. On 20 April 2000 a delegate of the Minister refused the application for a protection visa.  On 20 September 2000 the Refugee Review Tribunal (“the Tribunal”) affirmed the delegate’s decision.  The applicant then joined a representative action brought a by Mr Muin in the High Court seeking prerogative relief in respect of alleged breaches of procedural fairness arising out of the failure of the delegate to transmit certain documents to the Tribunal.  On 17 June 2003, following the High Court’s decision in Muin v Refugee Review Tribunal (2002) 76 ALJR 966, the applicant filed a separate application in the High Court for an order nisi for constitutional writs.  The application was remitted to the Federal Court and, on 16 July 2004, the application was dismissed with costs.

5. At about 3.35 pm on 6 August 2004, being the last day for filing a notice of appeal, the applicant gave instructions to pro bono counsel, to appeal.  To some extent the applicant was the author of her own misfortune in letting time run before giving those instructions, but it was not a simple matter of neglect.  The applicant understood, albeit erroneously, that she would be able to make an application for another class of visa relating to the need to care for her Australian-born daughter and had received an assurance that such an application would be duly considered.  To that end, the applicant made several attendances at the office of the Minister’s Department prior to 6 August 2004 in respect of the preparation of that application.  On lodgement of the application with the Department on 6 August 2004 the applicant was then informed that it was not an application that could be considered under the Migration Act 1958 (Cth). The applicant thereupon gave instructions to appeal in this matter.

6. In the limited time available to pro bono counsel a notice of appeal was prepared and presented to the Registry for filing within the permitted time.  However the notice of appeal was not accepted for filing because relevant documents relating to waiver of the filing fees could not be completed and lodged by close of business that day.  It is reasonably apparent under the terms of reg. 10(2) and 11 of the Federal Court of Australia Regulations 2004 that this case should have been treated as a matter in which payment of the filing fee could be deferred, either to be paid within 30 days or for material to support the claim to exemption from payment of the fee to be presented within 30 days.  It is to be noted that it was recorded on file that on several occasions exemptions from filing fees had already been extended to the applicant. 

7. In the circumstances, this is not a case to be applying a fine sieve to the prospects of the appeal.  Insofar as it is necessary to ensure that the grant of leave to appeal will not involve the Full Court in a pointless exercise, I am satisfied that, although the appeal at this point may not appear to be one that has a clear prospect of success, it is not one that is hopeless or doomed to fail or tantamount to an abuse of process if allowed to proceed.  It is often impossible to say how such a case may develop in the course of consideration of the appeal.  Given the particular circumstances of this case where the delay was short, if indeed it existed at all, and that the notice of appeal should have been received when it was presented within time, there is no prejudice to the Minister.

8. I am satisfied that the requirements of justice will be duly served by a readjustment of rights in this circumstance and that special reasons exist to extend the period for the filing of the notice of appeal.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated:             28 January 2011

Counsel for the Applicant:	L B Price (pro bono publico)
Counsel for the Respondent:	M T Ritter SC
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	8 December 2004
Date of Judgment:	8 December 2004