Kumar v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 616

FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 616

PREM S KUMAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
N 561 OF 2004

STONE J
13 MAY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 561 OF 2004

BETWEEN:	PREM S KUMAR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	13 MAY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for extension of time for leave to appeal is refused with costs.

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 561 OF 2004

BETWEEN:	PREM S KUMAR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	13 MAY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. On 22 March 2004 a judge of this Court dismissed the applicant's application for review of a decision of the respondent Minister, made under s 501 of the Migration Act 1958 (Cth), cancelling the applicant's permanent residency visa on character grounds. On 20 April 2004 the applicant filed an application for an extension of time in which to file and serve a notice of appeal. This was necessary because the period of 21 days prescribed by O 52 r 15(1) of the Federal Court Rules had expired. Under O 52 r 15(2) a judge may allow a notice of appeal to be filed out of time for ‘special reasons’. In considering an application for an extension of time there are a number of issues that are relevant to consideration of whether there are special reasons. One is the length of the delay involved in filing the notice of appeal. In this case the application for extension of time was lodged one week after the prescribed date for lodging an appeal.

2. The applicant has tendered a copy of a facsimile transmission from his solicitors, Christopher Levingston & Associates signed by Joanne Kinslor.  That facsimile contained the following incorrect advice:

   ‘If you would like to proceed with an appeal your appeal must be lodged within 28 days of 22 March 2004.’ 

3. The applicant lodged his notice of appeal within the period advised by his solicitor.  I am satisfied that his delay in lodging his notice of appeal was occasioned by that incorrect advice.  That fact is relevant to the Court’s exercise of its discretion to grant leave to appeal outside the prescribed time.  There are, however, two other issues to be considered in determining if there are ‘special reasons’ to exercise that discretion in the applicant’s favour. 

4. The first is the question of prejudice to the respondent.  Given the shortness of the delay I do not accept that there would be any prejudice to the respondent and I would not refuse an application for an extension of time on that ground. 

5. Secondly, the Court must consider the extent of any injustice to the applicant if I were to refuse leave.  A relevant consideration here is the likelihood of the appeal succeeding.  If it is clear that an appeal would not succeed or is highly unlikely to succeed then the possibility of injustice in refusing leave is correspondingly small. 

6. Before the primary judge, the applicant raised only an issue of procedural fairness.  He raised this issue again before me today.  The applicant complained that he had not been given an opportunity by the respondent to comment on remarks that Judge Goldring made when sentencing the applicant following his conviction for the offence of aggravated robbery in company.  For the reasons given by the primary judge this claim is not made out; Kumar v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 339. I do not need to repeat those reasons here.

7. In the hearing before me today, the applicant also alleged that the submissions put to the primary judge were not the submissions that he had instructed his counsel to make.  The applicant says that he wished to challenge the Minister's decision not the sentencing judge's remarks.  This submission is based on a  misunderstanding.  It is quite clear that the primary judge understood that the applicant was challenging the Minister’s decision and this claim is also not made out.

8. In his affidavit filed on 20 April 2004 the applicant also supported his claim of denial of natural justice by reference to the fact that the Minister’s reasons were given on 29 August 2003, approximately 10 months after the decision on 15 October 2002.  He did not point to any prejudice flowing from this delay other than that he would have liked more time.  I am satisfied there was no prejudice.  Although late, the reasons were given almost seven months before the hearing before the primary judge.  At that hearing the applicant was represented by experienced counsel who, apparently, did not take the point. 

9. In his oral submissions the applicant also claimed that in making his decision, the Minister failed to take into account the impact of the applicant’s deportation on his family.  This claim is also without foundation.  In the Minister’s written decision he refers in some three or four paragraphs to the effect that the applicant's deportation would have on his children and accepted that the separation of the children from their father would have an adverse effect on their development.  The Minister stated that he gave this consideration ‘significant weight.’ 

10. Ultimately, however, the Minister decided that the serious nature of the applicant's crimes, the disruption these crimes had caused others, the importance of protecting the Australian community, and the expectations of the Australian community outweighed all the other considerations.  That is a matter within the discretion of the Minister. 

11. The applicant has not been able to point to any error in the judgment of the primary judge.  Since I am satisfied that the likelihood of an appeal succeeding is at best negligible, the application for extension of time for leave to appeal must be refused.  I understand that the applicant may feel justly grieved at the incorrect advice given by his solicitors.  He was entitled to expect better from professional advisors.  Unfortunately, allowing him to proceed with a hopeless appeal will not alleviate that grievance.  The orders of the Court are that the application is dismissed with costs. 

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:            14 May 2004

Counsel for the Applicant:	The applicant appeared in person
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	13 May 2004
Date of Judgment:	13 May 2004