NAAU of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 887

FEDERAL COURT OF AUSTRALIA

NAAU of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 887

NAAU OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 581 OF 2002

BRANSON J
10 JULY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 581 OF 2002

BETWEEN:	NAAU OF 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	10 JULY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT the applicant have leave to file and serve, by no later than 24 July 2002, a notice of appeal against the judgment of Wilcox J dated 23 May 2002.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 581 OF 2002

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

JUDGE:	BRANSON J
DATE:	10 JULY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave to file and serve a notice of appeal made under O 52 r 15(2) of the Federal Court Rules (“the Rules”).  Such leave may only be given for “special reasons”.  

2. In Jess v Scott (1986) 12 FCR 187 at 195 the Full Court stated:

   “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 this 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 … 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.” 

3. The appropriate approach, in my view, is to determine first whether there are in this case special reasons which take the case out of the ordinary.  If there are such “special reasons” then the Court has a discretion to grant the applicant leave to file and serve a notice of appeal outside the time prescribed by the Rules or to decline to grant such leave.  If there are no “special reasons” the Court has no such discretion.

4. In my view, the applicant does overcome the first hurdle in the way of obtaining the leave that he seeks.  I consider that there are in this case special reasons which take the case out of the ordinary.

5. Although the applicant was present when his application to the Court was dismissed in an ex tempore decision, his command of English is limited and his Honour’s reasons were neither interpreted to him nor summarised for him.  The solicitor who appeared for the applicant before the primary judge has not provided legal advice to him since that time.  Although the applicant was told that he would receive the judge’s reasons for judgment in writing, he did not receive the reasons in printed form until after the expiry of 21 days from the date of the judgment.  He acted promptly upon receiving the written reasons for judgment. 

6. In the circumstances I am empowered to exercise the discretion given to the Court or a Judge by O 52 r 15(2) to give the applicant leave to file and serve a notice of appeal.

7. The respondent has contended that leave ought not to be granted to file and serve a notice of appeal because the proposed grounds of appeal are very weak and it would be futile to grant the extension of time sought.  It is to be remembered, however, that the applicant has not had an opportunity to seek legal advice as to any proposed grounds of appeal.  It may be that the applicant will not be able to obtain any legal advice but, in my view, it would be appropriate for him at least to have the opportunity to do so. 

8. It may well be, as the respondent contends, that any appeal instituted by the applicant will fail.  I note, however, that although the learned primary judge dismissed the application before him, he found that the applicant was justified in being critical of the Refugee Review Tribunal’s reasoning.  The respondent has not suggested that he will be prejudiced by the late filing of a notice of appeal in this case. 

9. Although the case is, in my view, for the reasons properly identified by Ms Hanstein who appeared for the first respondent, a finely balanced one, I have taken the view that it would be an appropriate exercise of my discretion to grant the applicant the extension of time that he seeks. 

10. The applicant has indicated that he does not presently have access to legal advice but is working with friends and relatives to prepare the grounds of appeal.  I urge the applicant to continue in his endeavours to seek legal advice concerning his proposed appeal and legal assistance in the preparation of any notice of appeal.  To assist him in his endeavours to obtain legal advice and assistance I propose to grant leave to file and serve a notice of appeal by no later than 24 July 2002. 

11. As I have mentioned, I consider it appropriate to give the applicant an opportunity to seek to obtain legal advice now that he has the judge’s reasons in writing in his possession.  It may be that if he can obtain legal advice he will make a decision that no point would be served by his exercising the leave which has been granted to him.  Alternatively he may gain assistance in the identification and formulation of proper grounds of appeal. 

12. The order of the Court is that the applicant have leave to file and serve, by no later than 24 July 2002, a notice of appeal against the judgment of Wilcox J dated 23 May 2002. 

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             17 July 2002

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Ms S Hanstein
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	10 July 2002
Date of Judgment:	10 July 2002