NALV v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 891

FEDERAL COURT OF AUSTRALIA

NALV v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 891

MIGRATION – application for leave to appeal out of time – refused – no issue of principle

Federal Court Rules O 52 rule 15(1)(a) and (2)

Howard v Australian Electoral Commission [2000] FCA 1767
Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627
Jess v Scott (1986) 12 FCR 187

NALV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 371 OF 2004

CONTI J
8 JULY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 371 OF 2004

BETWEEN:	NALV APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	8 JULY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicant pay the respondent’s costs of the application in the amount of $1,750.00.

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 371 OF 2004

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

JUDGE:	CONTI J
DATE:	8 JULY 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file and serve a notice of appeal from the orders and reasons of Federal Magistrate Barnes made and given on 19 February 2004, whereby her Honour found that no jurisdictional error had been established by the applicant in the reasons for decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 20 February 2003 (see NALV v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FMCA 326). An appeal from her Honour’s orders and reasons for judgment was not lodged within the 21 days prescribed by Order 52 rule 15(1)(a) of the Federal Court Rules (‘the Rules’).  The applicant therefore seeks the Court’s leave pursuant to Order 52 rule 15(2) of the Rules to file and serve a notice of appeal.  Such leave may only be granted where it is shown ‘special reasons’ exist, although the Court maintains a discretionary to grant or refuse to grant the extension of time sought: Howard v Australian Electoral Commission [2000] FCA 1767.

2. The affidavit in support of the applicant’s application for an extension of time reads literally as follows:

   ‘2.I am a citizen of Bangladesh and a Buddhist, sought protection in Australia because of my religious belief and my effective role as a community leader.  I was targeted by the ruling ‘Bangladesh National Party’ (BNP) leader for persecution.  My family and I were victims of violence by the (BNP) thugs.  For my well-founded fear of persecution I sought protection and refugee status (Class XA) visa under the Migration Act 1958 (Cth) (‘the Act’) in Australia. My application for protection visa was lodged on 8 November 2001 with the Department for Immigration and Multicultural and Indigenous Affairs and on 12 March 2002 my application for protection visa was refused by the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs.

   3.A decision was made on 20 February 2003 by the Refugee Review Tribunal refused my review application (ref: N02/42230) affirming the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs not to grant me a protection visa.

   4.I now apply for an extension of time and I respectfully plead that compliance with sub-rule 15(3) pursuant to Order 52 of the Federal Court Rules be dispensed with to enable me to file and serve a notice of appeal/application for the judgement of the Federal Magistrates Court given on 19 February 2004 at Sydney.  An extension of time is required because a notice of appeal was not filed and served within the time.

   5.I also plead respectfully that compliance with sub-rule 15(3) pursuant to Order 52 of the Federal Court Rules be dispensed with for the reason that the said judgement of the Full Federal Court was not sent to me till to date.

   6.I respectfully state that grave hardship will be caused to me and also put me into jeopardy of being deported from Australia to Bangladesh where I believe that I will be persecuted if I am not granted an extension of time in which to file and serve a notice of leave to appeal/application from the judgement of the Federal Magistrates Court given on 19 February 2004 at Sydney.

   7.I also respectfully state that I have brought my application within a reasonable time though the said judgement was not made available to me.

   8.The RRT Member before the decision failed to make aware of, and given an opportunity to me to respond to adverse material in possession of the Tribunal categorised by the delegate of the Minister for Immigration and Multicultural Affairs as the Part B Documents of his decision dated 20 February 2003.  In those circumstances, I state for the reasons state above there is an error of jurisdiction and I was also not accorded natural justice due to the failure to accord me procedural fairness.’

3. In order to comply with Order 52 rule 15(1)(a) of the Rules, a notice of appeal was required to be filed with the Court’s registry by 11 March 2004.  The application for extension of time (which attached a draft notice of appeal) and affidavit in support was however filed one week out of time, on 18 March 2004.  It appears particularly from paragraph 5 of the applicant’s affidavit above that his primarily reason for not complying with the rules is that ‘the said judgement of the Full Federal Court was not sent to me till to date’.  It is assumed that the applicant here refers to the written reasons of Barnes FM and not the ‘Full Federal Court’.

4. However, as has been pointed out in the written submissions of the respondent filed in chambers on 7 July 2004, the applicant was present at the hearing conducted on 19 February 2004 before Barnes FM and was assisted by a Bengali interpreter during the course of the hearing.  At the conclusion of the hearing her Honour delivered an ex tempore judgment.  The 21 day period in which the applicant was required to file and serve a notice of appeal commenced from the date that judgment was pronounced: Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627. In that case, Mansfield J held at [14] that ‘special reasons’ existed for the grant of an extension of time to appeal, because the applicant was in detention and had acted promptly upon receiving a hard copy of the reasons. In the present case there is evidence before me that the hard copy of the written reasons of Barnes FM was not forwarded to the applicant until 21 May 2004, almost two months after the application for an extension of time was filed. It can hardly be said with justification, as is suggested in paragraph 5 of the applicant’s affidavit extracted in [2] above, that he did not comply with the appeal rules as to timely filing of an appeal, because he had not received a copy of her Honours reasons within time to do so.

5. The nature of the ‘special reasons’ required to be shown under Order 52 rule 15(2) of the Rules were considered by a Full Court in Jess v Scott (1986) 12 FCR 187. At page 195 the Court said:

   ‘What is needed to justify an extension of time is indicated in rule 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 that 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 (not necessarily will, for the rule gives a discretion) 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.’

   No special reasons why the appeal should be permitted to proceed have been established by the applicant.  There is nothing exceptional or compelling to require the grant of an extension of time to appeal in the present circumstances.  The only explanation for delay is irreconcilable with the evidence before me and does not justify a departure from the general rule.

6. Strictly speaking it is therefore not necessary to review the decision of Barnes FM or that of the Tribunal.  However, it should be noted that even if I had found to be satisfied the ‘special reasons’ requirement, I would still refuse the application on discretionary grounds.  As was put to me by the respondent, ‘the draft notice of appeal [is] unhelpful and ultimately unarguable.  [It] allude[s] to formulaic grounds of review that either have no application to the actual facts of the present case or fail to outline any real case of error by her Honour Federal Magistrate Barnes or reviewable error by the Tribunal’.  I agree with that submission The proposed appeal was evidently prepared by a person having a confused and inadequate knowledge of migration law, and in any event having an entire absence of understanding of what may constituted viable grounds of appeal open to be presented in the context of refugee claims such as those here supposedly involved.

7. In the circumstances the application for leave must be refused with costs, the same being attended with no merit, either by way of plausible explanation for the delay in bringing the same, or in any event by the disclosure of any conceivably viable ground of appeal.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated:             8 July 2004

Applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	8 July 2004
Date of Judgment:	8 July 2004