NBBN v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 582
•10 MAY 2005
FEDERAL COURT OF AUSTRALIA
NBBN v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 582MIGRATION – application for leave to appeal – substantial injustice if leave not granted
Federal Court Act 1976 (Cth) ss 24(1A) and 24(1)(d)
Federal Court Rules 1976 (Cth)
Bienstein v Bienstein (2003) 195 ALR 225 referred to
Thomas Borthwick & Sons (Pacific Holdings) Limited v Trade Practices Commission (1988) 18 FCR 424 referred to
Re Luck (2003) 203 ALR 1 cited
Hall v Nominal Defendant (1966) 117 CLR 423 cited
Deighton v Telstra Corporation Limited (unreported) applied
Jess v Scott (1986) 12 FCR 187 referred to
Kalaba v The Queen (unreported) referred to
Décor Corp Pty Ltd v Dart Industries (1991) 33 FCR 397 applied
Neimann v Electronic Industries Ltd [1978] VR 431 referred to
Sharp v Deputy Commissioner of Taxation (1988) 88 ATC 4,184 referred to
Ariaee v Minister for Immigration & Multicultural Affairs [2001] FCA 1627 followedNBBN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
N 496 OF 2005
CONTI J
10 MAY 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 496 OF 2005
BETWEEN:
NBBN
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
10 MAY 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
Leave to appeal from the decision of the Federal Magistrate is granted to the applicant.
2.The applicant must file and serve the appeal within 28 days of this judgment.
3.The applicant’s potential appeal be referred to the NSW Bar Association for the purpose of obtaining legal advice and representation at any hearing pursuant to Order 80 of the Federal Court Rules 1976 (Cth).
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 496 OF 2005
BETWEEN:
NBBN
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT
JUDGE:
CONTI J
DATE:
10 MAY 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This purports to be an application for extension of time to file and serve a notice of appeal from the orders of a Federal Magistrate made on 22 June 2004 which summarily dismissed the application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) prior to the hearing of the application which had been set down for 1 March 2005. The applicant had failed to comply with orders made at the first directions hearing to either file an affidavit in support of the application or provide particulars of the reasons why jurisdictional error was claimed to have been apparent in the Tribunal’s reasons for decision. In response to the applicant’s failure to adhere to those orders, the Minister applied for summary dismissal. The Minister’s application was heard on 22 June 2004. The applicant did not attend that hearing; nor had the applicant attended at her hearing before the Tribunal. In those circumstances, the application was summarily dismissed pursuant to the Federal Magistrates Court Rules 2001 (Cth) for failure to attend a hearing and for failure to comply with an order of the Court.
The applicant filed the application to the Federal Court for an extension of time to file and serve a notice of appeal on 30 March 2005. It is apparent that this was not the correct documentation to have filed given that the order of the Federal Magistrate was interlocutory, rather than final in nature, and as such, no appeal exists as of right from that decision: Federal Court Act 1976 (Cth) ss 24(1A) and 24(1)(d). The usual test for determining whether an order is final or interlocutory is whether the order, as made, finally determines the rights of the parties: Bienstein v Bienstein (2003) 195 ALR 225 at 230 (McHugh, Kirby and Callinan JJ); Thomas Borthwick & Sons (Pacific Holdings) Limited v Trade Practices Commission (1988) 18 FCR 424 at 427 (Bowen CJ, Lockhart and Sheppard JJ). It is clear that a summary dismissal of an action on the grounds that the action is frivolous, vexatious, an abuse of process of the court or does not disclose a reasonable cause of action is an interlocutory judgment: Re Luck (2003) 203 ALR 1 at 4 (McHugh ACJ, Gummow and Heydon JJ); Hall v Nominal Defendant (1966) 117 CLR 423 at 440 (per Taylor J). Similarly an order made, as here, dismissing the application for review for failure to give effect to directions did not determine the legal rights of the parties.
An appeal from the Federal Magistrate’s orders was not lodged within the seven days prescribed by Order 52 r 10(2) of the Federal Court Rules 1976 (Cth). Although the applicant seeks the Court’s leave pursuant to Order 52 r 15(2) to file and serve a notice of appeal I will treat the application and the supporting affidavit as an application for an extension of time to apply for leave to appeal pursuant to Order 52 r 10(2). Unlike Order 52 r 15(2), which expressly provides that ‘special reasons’ must exist before an extension of time is granted to file an notice of appeal, Order 52 r 10(2) does not specify the grounds upon which an extension of time may be granted to file an application for leave to appeal from an interlocutory judgment. The Full Court of the Federal Court in Deighton v Telstra Corporation Limited (unreported, Lee, Heerey and R D Nicholson JJ, 17 October 1997) considered the discretion to grant extensions contained in Order 52 r 10(2) and concluded that by parity of reasoning, and by reference to the structure and content of the rules, the same principles guided the exercise of the discretion to grant an extension of time to file leave to appeal, as did the grant of an extension of time to file a notice of appeal (at 4).
First, there must be a satisfactory explanation for any delay in making the application for leave to appeal. Secondly, having regard to the fact that O 52 r 15(2) provides that an order extending time in which to file an appeal as of right may only be made when ‘special reasons’ exist which take the matter outside the usual course, no less should be required of applications for extensions of time to file applications for leave to appeal. The nature of the ‘special reasons’ required to be shown under Order 52 r 15(2) was considered by the Full Court in Jess v Scott (1986) 12 FCR 187 at 195 (Lockhart, Sheppard and Burchett JJ):
‘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 21 days. In that context, the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is 21 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.’
Their Honours in Deighton considered that this requirement of special reasons is equally applicable to applications for extensions of time to apply for leave to appeal. Finally, given that the appeal from an interlocutory judgment may only be prosecuted with the leave of the Court and that leave tends to be granted sparingly, it is necessary for the Court to assess the prospects of such leave being obtained, in the same way as the prospects of success of a proposed appeal are considered when exercising the Order 52 r 15(2) discretion: Kalaba v The Queen (unreported, Federal Court of Australia, Finn J, 13 September 1996). The guiding considerations which inform the decision to grant leave to appeal from an interlocutory judgment ‘in the general run of cases’ were outlined by the Full Court in Décor Corp Pty Ltd v Dart Industries (1991) 33 FCR 397, which adopted the two principles formulated in Neimann v Electronic Industries Ltd [1978] VR 431. First, whether in all the circumstances the interlocutory decision is attended by sufficient doubt to warrant reconsideration by a court on appeal. Secondly, whether substantial injustice would result if leave was refused, supposing the decision to be wrong. I would also adopt Burchett J’s dictum in Sharp v Deputy Commissioner of Taxation (1988) 88 ATC 4,184 at 4,186, in relation to the two considerations of ‘substantial doubt’, that
‘[t]hey bear upon each other, so that the degree of doubt which is sufficient in one case may be different from that required in another. Ultimately a discretion must be exercised on what may be a fine balancing of considerations’.
That passage was referred to by their Honours in Décor with apparent approval.
The affidavit in support of the application for an extension of time reads literally as follows:
‘1. The RRT found that the applicant had failed to satisfy the basic requirement for the grant of the Visa in making this finding. The RRT ignored parts of the applicant’s claims in the statement attached to her application for the relevant visa submitted. In doing so the RRT ignored relevant material or reached a decision that could not reasonably have been reached. Or reach a decision without reasonable or rational foundation. Giving rise to the incorrect finding that the applicant is not entitled to the relevant visa and give rise to jurisdictional error.
2. The above jurisdictional error affected the exercise of power of the RRT.
3. I failed to attend the RRT hearing day because of my solicitor didn’t want me to attending for the hearing days that’s why I had failed to satisfy the basic requirement for the grant of the visa.
4. After that my solicitor make an appeal the Federal Court of Australia also I have been for direction hearing day on 8 March 2004. At that time the Judgment of Scarlett FM didn’t arrage [sic] me for financy [sic] hearing day I have been told by my solicitor for the decision hearing day on 10 March 2005. It is on the basis I failed to attend for the financy [sic] hearing day.
5. I would like [sic] to the Judge make an order that decision of the Tribunal dated 16 December 2003 be set aside.’
Also provided by the applicant was a draft notice of appeal which reads as follows (read literally):
‘2. Since I have applied for refugee status about my protection visa all by Jack Meng. I didn’t know when was it for the decision hearing day in the Federal Court of Australia. I didn’t attend for the Tribunal at the hearing date. Because of my migration agent didn’t want me for the hearing date. After that I have been for direction hearing date on 8 March 2004. My migration agent told me finaly hearing day on 10 March 2005. that’s why I believe I have been legal stay [sic] in Australia.
[Under the heading “Order sought” appears the following]
1.After I have finished the direction hearing day on 8 March 2004 I didn’t know about when I am going to the decision hearing day of notice a letter from the Federal Court of Australia.
2.Whatever my migration agent have told me about my case in the Federal wrong information. I would like to the Judge giving me a fair judgment.’
I discern from those documents that the applicant would seek to explain both her absences, ie from the hearing before the Tribunal and from the hearing of the Minister’s application seeking summary dismissal on 22 June 2004 before Scarlett FM. It is only in respect of her absence from the latter hearing with which I have cause for hesitation. There is some inconsistency between the reasons given for the applicant’s absence in the supporting affidavit and the draft notice of appeal. In the former document the applicant claims that her solicitor informed her that the hearing date was 10 March 2005 and that this had somehow led the applicant to believe that she did not need to attend the 22 June 2004 hearing. In the draft notice of appeal the applicant claims that the same confusion arose because of what she had been told by the migration agent. Although the Minister foreshadowed an application seeking summary dismissal at the 8 March 2004 directions hearing (which the applicant attended), no date was set down for any such purpose. I observe that solicitor for the Minister sent the applicant a letter dated 1 June 2004 requiring her presence at the 22 June 2004 hearing, and that the solicitor filed in court an affidavit of service to this effect on 22 June 2004. This letter was addressed to the applicant’s address for service which appeared in the application for judicial review filed on 16 February 2004. The court file however contains a notice of change of address for service which was filed on 2 March 2004 by the applicant, thereby pre-dating the service of the notice of listing by the respondent. I attribute no blame to the Minister for her failure to send that notice to the correct address, for it is likely that the filing of the notice of change of address was not brought to the attention of the Minister’s legal representatives. My perception is that it was probably the Court’s omission to notify the respondent of the change of address for service is to be confirmed by the existence of correspondence on the file from the Court to the applicant post-dated the 2 March 2004, which was also sent to the old address.
The applicant filed an amended application on 15 April 2004, which contained the following grounds for the application:
‘1. The RRT constructively failed to exercise its jurisdiction.
Particulars
(a)The RRT failed to conduct a real, rather than purported exercise of its jurisdiction to determine whether the applicant was a Falun Gong practioner as she claimed.
(b)The RRT improperly precluded itself from considering the material which supported the applicant’s claim that she has assisted other Falun Gong practitioners.
2. The RRT’s satisfaction was reached in the absence of probative material and/or logical grounds and was thereby not rationally formed.’
The order summarily dismissing the application was presented to the Court registry for entering on 23 June 2004. It is difficult to determine precisely when this order would have come to the applicant’s attention. In any event no attempt was made to lodge an appeal from the decision until 30 March 2005, being some 29 days after the matter had originally been scheduled for hearing. The letter containing this information is dated 8 April 2004 and was again incorrectly sent to the applicant’s former address, as well as to the solicitor who was apparently assisting the applicant under the pilot RRT Legal Advice Scheme. It is conceivable that the applicant was incorrectly informed by her solicitor, Mr Turner, that the hearing date was 10 March 2005 rather than 1 March 2005, however so much is unlikely. Furthermore I would assume that on 10 March 2005, when the applicant was faced with a hearing that no longer existed, steps would have been taken to attempt to find out why this was the case. Again there was delay of another 20 days until any attempt was made by the applicant to appeal from the Federal Magistrate’s decision of 22 June 2004. I would point out at this stage that my statement that the applicant was represented by Mr Turner is merely supposition, based on an inference drawn from the address of correspondence to Mr Turner by the Court in relation to the matter. It is tolerably clear, by inference from the lack of any complaint from the applicant, that by the time the date for hearing eventuated in March 2005, Mr Turner was no longer representing the applicant.
I consider that the apparent omission of the Court and the Minister to correctly address their correspondence to the applicant provides an explanation for why the appellant could not have been aware, until at least 1 March 2005, of the orders having been made on 22 June 2004, there being no evidence to suggest that those orders had been otherwise brought to her attention. Notwithstanding there was still a delay of some 29 days, or 20 days assuming that I accept the applicant’s assertion that her solicitor/migration agent misinformed her of the contents of the Court’s letter of 8 April 2004 containing the date of final hearing, before any attempt was made to initiate an appeal. There is no material explanation of explaining this delay, although I would observe, as Mansfield J did in Ariaee v Minister for Immigration & Multicultural Affairs [2001] FCA 1627, that the applicant is in detention, does not speak English and has no knowledge of the law of practice and procedure such as to be aware of the difference between interlocutory and final judgments, and the varying periods of time permitted within which to initiate appeal processes there from.
As is clear from the authority cited above, I must also consider the prospects of an application for leave to appeal succeeding, which requires, in effect, a consideration of the merits of the appeal were one to be prosecuted by the appellant. The two reasons provided by the federal Magistrate for summarily dismissing the application were the applicant’s failure to attend Court on the 22 June 2004, and the failure of the applicant to comply with the directions given on 8 March 2004 requiring that she file and serve an amended and full particularised application together with an affidavit in support and any evidence which she proposes to rely on or before 5 April 2004. As I have already observed, an amended application was filed by the applicant on 15 April 2004. This modified the grounds being relied upon by the appellant and provided two particulars. The difference in quality between this pleading and that which preceded it are striking and suggest that the appellant did receive at least limited legal advice.
Although the amended application was filed outside of the timetable set down at directions on 8 March 2004, and was not accompanied with a supporting affidavit, it seems to me unlikely, bearing in mind the commonality of non-compliance of court orders in cases of this nature, that those factors alone (ie without the absence of the applicant) would have caused the Federal Magistrate to have ordered summary dismissal. Certainly the apparent omission of the Federal Magistrate to compare the address on the letter notifying the applicant of the 22 June 2004 hearing and the address contained on the notice of change of address for service, is in my opinion such as to warrant that the decision is attended with sufficient doubt. This is particularly the case when the substantial injustice afforded to the applicant is borne in mind. Although not having the effect of determining the applicant’s legal rights in respect of review, this summary dismissal rendered any further review prospects of the appellant limited at best.
I would therefore, on the bases explained above, grant the applicant an extension of time of 28 days within which to file an appeal to the Federal Court pursuant to Order 52 r 10(2)(b). In the circumstances, and in the exercise of my discretion, I rule that the costs of the application be the appellant’s costs in the appeal whether that appeal be heard by a single judge or three judges will be a matter for decision by the Chief Justice.
Arising out of my consideration of the appeal papers provided to the Court, and pursuant to Order 80 of the Federal Court Rules, I recommend to the New South Wales Bar Association the appointment of Counsel to assist and represent the applicant upon the appeal to the Federal Court. That recommendation is not of course to be interpreted as indicative of any view on my part of the intrinsic merit of any grounds of appeal that may be formulated and pursued by the appellant on the appeal.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate:
Dated: 10 May 2005
The applicant appeared in person Solicitor for the Respondent: Sparke Helmore Date of Hearing: 10 May 2005 Date of Judgment: 10 May 2005
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