Fardsavar, M. v Minister for Immigration and Ethnic Affairs

[1986] FCA 514

- J f l l&J

' 514-

c

NOT INTENDED FOR GENERAL DISTR1BUJ"N

IN THE FEDERAL COURT )

AUSTRALIA	OF	)
WESTERN AUSTRALIA	) No. WA G109 of 1986
DISTRICT REGISTRY	)
GENERAL DIVISION	1
B E T W E E N : WJID FARDSAVAR

Applicant

and

MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

m: TOOHEY J.

7 November 1986

REASONS FOR JUDGMENT

This 1 s an appllcation for extension of time in which to

file and serve a notice of appeal from a 2udument of this Court

delivered on 3 October 1986. The applicatlon refers to a judgment

ulven by Forster J. on 10 October but hls Honour delivered

judyment on 3 October, handing down reasons on 10 October.

The appllcation for extension of t m e was filed

on 6 November I.e. the day on which It was heard. On 5 November the applicant had filed an applicatlon for leave to appeal from

the ~udument of Forster J. However leave to appeal was not

required; there was an appeal as of rluht but an extenslon of time

was required by reason of 0.52 r.15 of the Qeral Court Rules.

1

Y .

Th? appllcatlon for leave to appeal was dlsmlssed and the

appllcatlon far extenslon of time was pursued.

Order S 2 r.15 empowers the Court to extend the tlme for

filinu and servinu a notice of appeal, after the prescrlbed cimes

have expired, for special reasons. This is a more llmltlnu provision than appears in some appeal rules. There is no reason

to construe "special reasons'' narrowly or in some unduly technical

way. Nevertheless the fact is that special reasons must be

demonstrated before the Court may arant	an extension of time in
the present circumstances.

In Wolcott v. D - (1984) 4 F.C.R. 124 Muirhead J.

discussed the operation of 0.52 r.15. stressing that there must be

facts or circumstances which are unusual or atypical. I am not

persuaded that the circumstances here are unusual or atypical In the sense contemplated by the rule. It was said on behalf of the applicant that, following the dismissal of his application, his legal representative concentrated his activities on making

representations to the respondent o ensure that on his

deportatlon he would be sent somewhere other than to Iran. That

may be so but it is not a reason for failing to lodge a notice of

appeal within time. It was not suggested that the applicant had

been led by assurances	on the part of the respondent not to pursue
his rlght of appeal.

Indeed lt 1 s slanlflcant that the first appllcatlon

lodued after the iudqrnent of Forstrr J. was a fresh appllcatlon

for an order t o revlew. an apallcatlon that was lodued

m 3 November. It seems tu me that there was a conscious declslun

not to prosecute an appeal agalnst the deportatlon order ltself

but rather to seek a review of the declsion of the respondent that

the applicant be deported to Iran. That appllcation, whlch 1 s the

sub-rect of a motion for a stay of proceedings and whlch motion I

deal wlth In reasons for decislon about to be delivered, has

undergone some change but essentlally it 1 s an attack on the

respondent’s decision that the applicant be deported to Iran.

I am in no way crltical of the declslon taken by the

applicant’s advisers to proceed in this way; indeed it may well

have been the more fruitful avenue to pursue. All I am saying

1 s that, on the material made available to the Court, there was

nothing fairly answering the description of special circumstances.

The application for an extension of time is dismissed.

I certify that this and the preceding

two pages are a true copy of the

reasons for judgment herein of his

Honour Mr. Justice Toohey.

#L.

Associate

Dated: 7 November 1986