NAII v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1008

FEDERAL COURT OF AUSTRALIA

NAII v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 1008

NAII v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 1122 OF 2003

WHITLAM J
1 SEPTEMBER 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1122 OF 2003

BETWEEN:	NAII APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WHITLAM J
DATE OF ORDER:	1 SEPTEMBER 2003
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is refused.
2. The applicant is to pay the respondent’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	N 1122 OF 2003

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

JUDGE:	WHITLAM J
DATE:	1 SEPTEMBER 2003
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for leave pursuant to Order 52 rule 15(2) of the Federal Court Rules to file and serve a notice of appeal.  The application was filed on 22 August 2003.  The judgment sought to be appealed from is that of the Federal Magistrates Court made on 23 July 2003:  NAII v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 330. Order 52 rule 15(6) requires that an application under r 15(2) shall be accompanied by an affidavit showing the nature of the case, the questions involved and the reasons why leave should be given. The affidavit in support of this application is that of the applicant made on 21 August 2003.

2. The proceeding in the court below was an application to review a decision of the Refugee Review Tribunal (“Tribunal”) handed down on 19 December 2002 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.

3. The applicant is a Pakistani national.  He made various claims before the Tribunal in support of his application for a protection visa.  The application in the court below sought to challenge the factual conclusions reached by the Tribunal but did not on its face raise any legal issues.  The magistrate made this point in his reasons for judgment (at [4]) and he then emphasised that the case that was advanced before him at first instance amounted to no more than a challenge to the merits of the Tribunal’s decision .  The application was accordingly dismissed.

4. The application for an extension of time has attached to it a draft notice of appeal which sets out proposed grounds of appeal alleging error of law, procedural fairness, jurisdictional error and denial of natural justice and which invokes relief pursuant to section 39B of the Judiciary Act 1903 (Cth). The difficulty confronting the applicant today is that, as he frankly concedes, none of the matters raised in his draft notice of appeal were raised before the court below. The applicant says that he has located a friend who has been able to assist him with advancing these kinds of arguments. I express no view of the chances of such arguments having succeeded had they been raised at first instance, though it may be that they are not in fact substantial.

5. The applicant says and it must be accepted that he did not realise that the 21 days prescribed for filing a notice of appeal ran from the time that judgment was pronounced in the Federal Magistrates Court.  The applicant states that he thought the time limit ran only from the date he received a certified copy of the reasons for judgment given ex tempore by the magistrate.  So much may be accepted as an explanation for the delay but that fact does not resolve the problems facing the applicant.

6. The application is opposed by the respondent on several bases.  I do not think it can be suggested that there has been a seriously lengthy delay.  A submission is made that lack of knowledge cannot be considered a “special reason” within the terms of O 51 r 15(2) of the Federal Court Rules.  That may or may not be the case.  I do not need to decide that question since it seems to me that the more substantial reason for refusing the application is the lack of merit of any appeal.

7. The authorities in relation to the considerations that apply in an application for an extension of time to file a notice of appeal include Jess v Scott (1986) 12 FCR 187. In that case a Full Court rejected the submission that r 15(2) required that the words “for special reasons” be given a stringent interpretation, and held that the cases established that leave to appeal out of time is to be determined by the Court’s view of the demands of justice in accordance with a broad judicial discretion. Since that case, the discretion to extend time has been considered in a number of cases, notably by McHugh J in Gallo v Dawson (1990) 64 ALJR 458, particularly in the passage at 459D, which statement was applied by Mason CJ in Halliday v Sacs Group Pty Ltd (1993) 67 ALJR 678 at 679F. There is also more recent authority in Jackamarra v Krakouer (1998) 195 CLR 516.

8. In the present case all the material suggests that there is no prospect of success if an appeal is permitted.  The question of delay in this case is only a matter of days and for the purposes of the present application I am prepared to accept the applicant’s explanation for his delay.  However, that is not a controlling consideration in the disposition of the application.  I am firmly convinced on the materials before me that the appeal would be totally fruitless and in the circumstances there is no reason why the discretion should be exercised in the applicant’s favour.  Accordingly the application will be refused.

9. The respondent asks for the costs of the application.  The applicant quite reasonably indicated that if the application was refused he had nothing to say in opposition to such an order.  Accordingly, the orders of the court are that the application is refused and the applicant is to pay the respondent’s costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.

Associate:

Dated:             23 September 2003

Applicant appeared in person.
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	1 September 2003
Date of Judgment:	1 September 2003