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NARE v Minister for Immigration

NARE v Minister for Immigration

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FEDERAL COURT OF AUSTRALIA
NARE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 554
NARE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 325 of 2003
ALLSOP J
5 JUNE 2003
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 325 of 2003

BETWEEN:

NARE
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

ALLSOP J

DATE OF ORDER:

5 JUNE 2003

WHERE MADE:

SYDNEY

THE COURT:
1.Orders that on or before 8 August 2003, the applicant file and serve an affidavit attaching a draft amended notice of appeal and full written submissions in support thereof.
2.Directs that the District Registrar approach the New South Wales Bar Association under O 80 of the Federal Court Rules for assistance in the preparation of the amended notice of appeal and the accompanying written submissions.
3.Orders that the application stand over to 15 August 2003.
4.Orders that the question of costs be reserved.

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 325 of 2003

BETWEEN:

NARE
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT

JUDGE:

ALLSOP J

DATE:

5 JUNE 2003

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This is an application for an extension of time to file and serve a notice of appeal.
On 20 February 2003, a Judge of this Court dismissed the application brought by the applicant to review a decision of the Refugee Review Tribunal (the “Tribunal”) made on 25 June 2002 and handed down on 17 July 2002. The Tribunal had rejected the applicant’s claim for a protection visa.
The applicant had an appeal as of right, subject to a notice of appeal being filed within 21 days.
The applicant mistakenly thought that she had 28 days in which to file an appeal. She is not the first litigant or practitioner to make that mistake. The applicant swore that her bridging visa (which allowed her to remain in Australia 28 days after the Court dealt with it) led her to believe that the relevant time was 28 days. The applicant was only a few days out of time (and within the 28 day period).
The grounds of the proposed notice of appeal raise only one issue:
His Honour erred in upholding the decision of the Refugee Review Tribunal on the basis that additional documents submitted to the court were irrelevant to my claims.
The applicant is Russian speaking, of Ossetian/Armenian Jewish background. She is a citizen of Lithuania.
When the application was called on before me I sought to extract from the applicant her complaints with both the Tribunal’s decision and the reasons of the primary judge. I found it difficult to understand, with precision, what the ground or grounds of appeal were or could be, conformable with the nature of available judicial review under s 39B of the Judiciary Act 1903 (Cth).…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] FCA 554
Decision Date: 5 JUNE 2003

CaseChat Overview and Summary

In the case of NARE v Minister for Immigration & Multicultural & Indigenous Affairs, the applicant sought an extension of time to file and serve a notice of appeal against the dismissal of her application to review a decision of the Refugee Review Tribunal (Tribunal), which had rejected her claim for a protection visa. The applicant was only a few days out of time and had mistakenly believed she had 28 days to file an appeal, instead of the 21 days required by law. The proposed grounds of appeal raised only one issue, which was that the primary judge erred in upholding the decision of the Tribunal on the basis that additional documents submitted to the court were irrelevant to the applicant's claims.

The court had to determine whether the applicant's appeal, which was late, could be extended to provide her an opportunity to argue the appeal. The court found that the applicant had misunderstood the relevant time for filing an appeal, but that she was only a few days out of time. The court also noted that the applicant's submissions were somewhat confused and that she did not articulate a clear legal error in the approach of the primary judge. However, the court believed that the appeal was not hopeless and granted the applicant two additional months to file an amended notice of appeal and supporting written submissions, with assistance from the Bar. The court also directed that the question of costs be reserved.

The court's reasoning was based on the principle that the applicant had a statutory right to appeal, and that the court should not end the applicant's access to the legal system on this application. The court proposed to take a middle course by giving the applicant two further months to file an amended notice of appeal and full supporting written submissions, with legal assistance. The court emphasized that the draft notice of appeal and written submissions must frame the applicant's complaints about the primary judge's reasons in terms that legitimately throw up a relevant legal question or questions and can be understood as doing so. The court also emphasized that this approach does not deny the applicant an oral hearing, as she had already had one. The court further proposed to stand the matter over to 15 August 2003 and take steps with the relevant list judge to have the appeal listed as a matter of expedition thereafter, if there was a clear basis for a successful appeal.

Orders