NARE v Minister for Immigration

[2003] FCA 554

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

1. This is an application for an extension of time to file and serve a notice of appeal.

2. 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.

3. The applicant had an appeal as of right, subject to a notice of appeal being filed within 21 days.

4. 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).

5. 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.

6. The applicant is Russian speaking, of Ossetian/Armenian Jewish background.  She is a citizen of Lithuania.

7. 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). That is not intended as a personal criticism of the applicant. Though, if I may be permitted to say so, an obviously intelligent and well-educated woman, the applicant’s submissions, made through an interpreter, were somewhat confused in organisation and expression. This was no doubt made worse by her evident anxiety and what I perceived to be a level of frustration at the inability to understand and convey what was called for. However, it is fair to say that no basis of legal error in the approach of the primary judge was articulated.

8. Before the primary judge the applicant had placed a number of submissions and additional documents. The Court Book at first instance comprised two thick volumes.

9. As best as I could understand the applicant’s complaints, they amounted to an extensive attack on the factual findings of the Tribunal.  Indeed, ultimately, that is how the primary judge saw the matter.

10. What the applicant may well not appreciate, not being a lawyer, is that the process and purpose of review to this Court does not, and cannot, involve simple re-finding of facts found by the Tribunal.  Rather the review is, broadly speaking, to ensure that the Tribunal has made the decision lawfully – for instance asking itself the right question, affording procedural fairness, dealing with all matters which the Migration Act 1958 (Cth) (the “Act”) says must be dealt with, not dealing with matters extraneous to its task and correctly understanding the law to apply. It is not the Court’s job to review the factual findings of the Tribunal unless their quality (or lack thereof) is such as to betray a failure to undertake properly the required task. This is why it was not open to the primary judge to receive fresh evidence going to factual matters decided by the Tribunal in an attempt to demonstrate factual error in those conclusions by the Tribunal.

11. Having heard the applicant, I thought it appropriate to use Order 80 of the Federal Court Rules to obtain assistance from the Bar as to the correct approach that I should take.  As was only proper, the respondent did not oppose that course.

12. Mr Leeming later appeared as amicus curiae.  He filed helpful submissions.  He dealt with the issue that was particularly troubling me:  in circumstances where a litigant in person could not clearly articulate a ground of appeal, but in circumstances where because of the potential bulk or scope of the factual matrix, I could not be sure that the appeal was hopeless, whether at this interlocutory stage I should undertake a detailed review of the Court Book or whether I should leave that to the Full Court or whether I should simply refuse leave because no error was articulated.

13. Mr Leeming pointed out that there may be a “Muin” point (see Muin v Refugee Review Tribunal (2002) 76 ALJR 966), although he recognised that the point was not taken before the primary judge. He said, nevertheless, that such a submission would have been doomed under a “pre- S157” (see Plaintiff S157 v The Commonwealth (2003) 77 ALJR 454) legal regime as enunciated by the Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 448.

14. Mr Leeming submitted that I should not carry out a detailed analysis, as if on appeal, to see whether the appeal should proceed.  Unless I was confident, he submitted, after a preliminary or summary examination that the appeal was hopeless, I should allow the applicant to enjoy what was in effect a statutory right.  He emphasised that had it not been for the misunderstanding about dates, the applicant would have had her appeal as of right.

15. I am not prepared to approach the matter thus.  Nor, however, am I prepared to end the applicant’s access to the legal system on this application, at this point.  I am not convinced that an appeal properly framed would be hopeless; but, as presently framed, the appeal is probably bound to fail.  In so expressing the matter I should not be taken to have discerned (otherwise unarticulated) error in the approach of the primary judge.

16. What I propose to do is to take a course midway between granting an extension and refusing it.  I propose to give the applicant two further months in which to file and serve an amended draft notice of appeal together with full supporting written submissions.  I will make an order under Order 80 for the provision of legal assistance to undertake this task.

17. If from that draft notice of appeal and those written submissions (I deliberately emphasise these words) I cannot discern an arguable ground of legal review tolerably clearly enunciated, I will refuse an extension.  I have already heard the applicant in some detail.  I do not propose to have another oral hearing.  The draft notice of appeal is to identify, with precision, all bases of attack on the primary judge’s reasons.  There is to be a clear foundation for any such attack in the written submissions.  The application must, with or without legal assistance, frame the applicant’s complaints about the decision of the primary judge in terms which legitimately throw up a relevant legal question or relevant questions and which can be understood as doing so.  This approach does not deny the applicant an oral hearing.  She has had that.  This is a further supplementary opportunity for her to demonstrate arguable error in the primary judge’s reasons (which at present is absent).  In order to minimise expense to the respondent, I will not call on him unless there is a clear basis thus identified which could found a successful appeal.

18. Accordingly, I propose to stand the matter over to 15 August 2003.  I will make an order under O 80 for the provision of assistance in respect of the drafting of an amended notice of appeal and full written submissions in support of the appeal.

19. If after giving the respondent an opportunity to be heard, I am of the view that there has been enunciated in this written form an arguable ground of appeal, I will take steps with the relevant list judge to have the appeal listed as a matter of expedition thereafter.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Allsop.

Associate:

Dated:            5 June 2003

The applicant appeared in person.
Amicus Curiae:	M Leeming
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	28 April 2003, 2 and 29 May 2003
Date of Judgment:	5 June 2003