NACX v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 486

FEDERAL COURT OF AUSTRALIA

NACX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 486

MIGRATION – protection visa – judicial review – Minister’s delegate refused to issue protection visa – decision affirmed by Refugee Review Tribunal – a single judge of the Federal Court found that the Refugee Review Tribunal did not make an error of law when it affirmed the decision of the delegate of the Minister – whether an extension of time should be granted to file an appeal from the decision of a Judge of the Federal Court to a Full Court of the Federal Court where such an extension of time would be futile given the grounds of appeal .

Federal Court Rules, O 52 r 15(2)

Jess v Scott (1986) 12 FCR 187

NACX v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N389 OF 2003

HILL J
14 APRIL 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N389 OF 2003

BETWEEN:	NACX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL J
DATE OF ORDER:	14 APRIL 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent Minister’s 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	N389 OF 2003

BETWEEN:	NACX APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	HILL J
DATE:	14 APRIL 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant applies to the Court for an extension of time in which to file and serve a notice of appeal from the judgment of Gyles J given on 25 February 2003.

2. The applicant had applied to the respondent Minister for a protection (Class XA) visa.  His application was refused by a delegate of the respondent Minister and the applicant sought review of that decision from the Refugee Review Tribunal.  The Tribunal affirmed the decision of the delegate refusing the protection visa.

3. From this decision of the Tribunal the applicant applied to the Court for judicial review.  The application was heard on 25 February 2003.  The applicant handed to Gyles J or otherwise filed in the Court an outline of submissions headed ‘Submission: My Appeal to the Federal Court Against RRT Decision’. Gyles J dismissed the application and gave an extempore judgment.

4. The application for extension of time was made on 25 March 2003, that is to say, 28 days from the date of Gyles J’s decision. Pursuant to the rules an appeal must be filed in the court 21 days after the decision.  Obviously the time elapsing from the expiration of that 21 days to the date of application for extension of time was very short.  That is no doubt a factor which weighs in favour of granting the application. 

5. However, the applicant has not, in accordance with the rules, filed with the application for extension of time an affidavit explaining how it came about that the appeal was filed out of time.

6. From the bar table the applicant has said that he was unaware that an appeal had to be lodged within 21 days and only discovered that when he came to fill out the notice of appeal.  By that time 28 days had elapsed.  The applicant filed, with the application for extension of time, a draft notice setting out the grounds of appeal upon which he would propose to rely.  The document contains four grounds.  These are as follows:

   1) That Gyles J erred in failing to find that the Tribunal had failed to consider the material facts of the case.
              2) That Gyles J erred in considering the present political situation in India.
              3) That the Tribunal unreasonably brought a number of matters for consideration which affected the applicant's ability at the hearing.  That Gyles J did not reflect these in his judgment.
              4) That the Tribunal breached the rules of procedural fairness in connection with the case and that Gyles J did not consider this.

7. The submissions lodged by the applicant with the Court proceed substantially on the basis that the Tribunal was biased against the applicant.  Without setting the submission out in detail the applicant submitted that there had been inconsistency between his submission and his oral evidence on the one hand and the decision of the Tribunal Member on the other.  There are illustrations given of this in the written submissions.  It is difficult to see that the submissions addressed the various matters said to be errors which his Honour committed.

8. The reasons for decision note that the written submissions were not in any way added to at the hearing.  They note also that the only jurisdictional error which the applicant identified in the submissions was the issue of bias.  Certainly there is nothing in the submissions which suggests denial of natural justice on the part of the Tribunal as is suggested in the now proposed notice of appeal.  The learned Primary Judge analysed briefly the reasons for decision of the Tribunal as the claim of bias which the applicant had made would only be supported from the reasons for decision themselves.  There was no suggestion of any other evidence which would point to bias on the part of the Tribunal.  His Honour found and indeed the finding does not now seem to be challenged that there was no evidence of bias to be found in the Tribunal's reasons.

9. Indeed, as his Honour points out, the process and procedure which the Tribunal adopted and which it described in its reasons show that the applicant was afforded every opportunity of presenting his case and indeed of knowing the concerns which the Tribunal held after examining the applicant's case on the papers and as a result of questions which the Tribunal asked the applicant to answer. 

10. When I suggested to the applicant that the matters that he now sought to raise in his notice of appeal were not matters that appear to have been raised before the learned Primary Judge, he indicated that he could not really think at the moment of the grounds of appeal that he would really like to argue in the event of the present application being successful.  He suggested that he might be given another two weeks to consider what errors the Primary Judge may have made.

11. I am conscious of the fact that the applicant is not legally represented before me.  I know that he would have difficulty in analysing what legal mistakes may have been made.  I would suspect that he would also have little understanding of the difference between the proceedings before Gyles J at first instance and the proceedings upon an appeal from Gyles J.  I have taken into account these difficulties in weighing up whether an extension of time should be granted.

12. Order 52 rule 15(2) of the Federal Court Rules provides for the giving of leave to appeal notwithstanding that the appeal was not lodged within the requisite 21 day period.  It is necessary for an applicant for leave to show that special reasons exist for the exercise of that discretion.  However, the requirement of special reasons is not an unduly onerous one as the decision of the Full Court of this Court in Jess v Scott (1986) 12 FCR 187 at 195-6 demonstrates.

13. In a case where the delay is short the Court will more readily give leave.  However, it will nevertheless be relevant in deciding whether leave should be given to appeal out of time that the appeal have at least some chance of success.  If the appeal would have no chance of success then the injustice to the respondent would outweigh the injustice to an applicant denied the right to appeal.  It is difficult to see that the Primary Judge could have erred in the various ways suggested in the notice of appeal when the submissions made to him did not seem to be directed to those matters at all.

14. Likewise, the proposed notice of appeal does not seem to suggest that the learned Primary Judge really erred in deciding against the applicant on the issue of bias which was the ground of review which the applicant substantially argued before him. 

15. In the circumstances it seems to me that the applicant, while no doubt disappointed by the decision, has not really formulated any ground of error in it.  This is so notwithstanding that the application for leave to appeal was filed some three weeks ago.  I think the present case is one where, on what is indicated in the proposed notice of appeal, an appeal would be hopeless and without merit.

16. In those circumstances I do not think that I should grant leave to appeal out of time and I would accordingly dismiss the application.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             15 May 2003

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	R White
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	14 April 2003
Date of Judgment:	14 April 2003