NAFB v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 740

FEDERAL COURT OF AUSTRALIA

NAFB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 740

NAFB v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 737 of 2003

BRANSON J
16 JULY 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 737 OF 2003

BETWEEN:	NAFB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	BRANSON J
DATE OF ORDER:	16 JULY 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 737 OF 2003

BETWEEN:	NAFB APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	BRANSON J
DATE:	16 JULY 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant has sought an extension of time in which to file and serve a notice of appeal.  He wishes to appeal from a judgment delivered by Hill J on 23 May 2003.  The applicant’s draft notice of appeal is dated 18 June 2003.  It seems likely that he only learned of the time within which the Federal Court Rules (‘the Rules’) requires a notice of appeal to be filed when he sought to file his notice.  His application for an extension of time was filed on 19 June 2003.

2. The applicant has, by his affidavit filed in support of his application, identified a number of circumstances relevant to the late filing of his notice of appeal.  The affidavit refers to his lack of knowledge of the requirement of the Rules and to the fact that he did not get a copy of the learned primary judge’s judgment in writing until two weeks after the judgment was pronounced.  The affidavit also states that at about the time of the delivery of the judgment of the primary judge the applicant received news of the death of his father.

3. In my view these matters are sufficient to take the case out of the ordinary.  For this reason they constitute ‘special reasons’ within the meaning of O 52 r 15 of the Rules.  In the circumstances I thus have a discretion to grant the applicant an extension of time within which to file his notice of appeal.  However, it remains necessary for me to consider whether in all of the circumstances it would be appropriate to grant the applicant the extension of time that he seeks.

4. An important factor to be taken into account in determining whether the applicant should be granted the extension of time is the prima facie strength of the proposed ground of appeal set out in his notice.  The draft notice of appeal contains only one purported ground of appeal.  It is not in truth a ground of appeal; it is a restatement of the applicant’s claim that his life would be in danger if he is required to return to either India or Nepal.

5. Before me today the applicant has complained that he did not have the benefit of an interpreter in presenting his arguments to the primary judge.  In his reasons for judgment Hill J has noted that the applicant was happy to proceed without the benefit of an interpreter, that the applicant did not seek an adjournment and that his Honour was satisfied that the applicant was able to put to the Court all of the matters that he wished to rely upon. The applicant has indicated to me today that he was influenced in not seeking an adjournment of the hearing before Hill J by the likely cost that would be involved in having an interpreter.  It is plain that this matter was not drawn to the primary judge’s attention.  Had it been, his Honour would have told the applicant that the costs of interpreters are ordinarily borne by the Court.  In the circumstances which I have outlined, no error could be found in his Honour’s decision to proceed with the hearing in the absence of an interpreter. 

6. The primary judge delivered a careful judgment in this matter.  The judgment discloses that his Honour thoroughly reviewed the material before the Refugee Review Tribunal (‘the Tribunal’).  His Honour concluded that the applicant was not able to demonstrate any jurisdictional error made by the Tribunal.

7. The applicant has not today been able to demonstrate any arguable error in the judgment of the primary judge.  The applicant has complained that his Honour did not agree to take from the applicant certain documents which he offered to the judge.  The applicant acknowledges that these were not documents that were before the Tribunal.  They were documents that were relevant only to the merits of the applicant’s claim for a protection visa.  For this reason his Honour could not be found to have erred in refusing to receive the documents.  As the primary judge pointed out to the applicant, it is not for this Court to reconsider the merits of the applicant’s claim for a protection visa. 

8. The applicant has further complained that certain things which he told his Honour are not mentioned in his Honour’s published reasons for judgment.  Again, all of the things which the applicant has identified as things that he told the primary judge were relevant, if at all, only to the merits of the applicant’s claim for a protection visa.  It was, no doubt, for this reason that his Honour did not individually identify them in his reasons for judgment.

9. In my view, no useful purpose would be served by granting to the applicant the extension of time that he seeks.  The submissions made by the applicant to me today confirm that what in truth he seeks is an opportunity to argue again the merits of his original application for a protection visa. 

10. As I am not satisfied that the applicant has demonstrated that the appeal which he wishes to prosecute has any prima facie merit I do not consider that this is an appropriate case for the grant of an extension of time in which to file and serve a notice of appeal.  The application will be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             17 July 2003

Counsel for the Applicant:	the Applicant appeared in person
Counsel for the Respondent:	Mr Reynolds
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	16 July 2003
Date of Judgment:	16 July 2003