Pillay v Minister for Immigration and Multicultural Affairs

[1999] FCA 1395

FEDERAL COURT OF AUSTRALIA

Pillay v Minister for Immigration & Multicultural Affairs [1999]

FCA 1395

PERUMALL PILLAY, DAVAGEIAMAH PILLAY, RANGINI PILLAY and PRAGASEN PILLAY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1058 of 1999

RIYAZ KHAN, KULSUM NAZREEN NISHA and MOHAMMED IHRAAZ ZUYAB KHAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1078 of 1999

SAM ROGERS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1077 of 1999

AGYENA BOATENG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1076 of 1999

NILAWATI MUNIR and WIDYA ERZAKILA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1074 of 1999

SEMAAN JOSEPH KALKOUL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1075 of 1999

SALA ROGERS KOROI, WATISONI KOROI, MARY PICKERING, MAKERATA TUIDAMA, SARA KOROI and BILL WATSON KOROI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1068 of 1999

BALAMAAL PADAYACHEE v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1065 of 1999

JONE MATABEICI TURAGABECI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1067 of 1999

NEELAMEGUM RAVICHANDRAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1079 of 1999

MARCIANO MARCELO CRUZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1071 of 1999

ANTHONY DAMODARAN GOUNDAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1072 of 1999

JAGDISH KOUR, SATWANT SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1069 of 1999

ANTONINA GOMEZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1073 of 1999

KWADWO ANIM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1070 of 1999

MATHEWS J

29 SEPTEMBER 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1058 OF 1999

BETWEEN:

PERUMALL PILLAY
First Applicant

DAVAGEIAMAH PILLAY
Second Applicant

RANGINI PILLAY
Third Applicant

And

PRAGASEN PILLAY
Fourth Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
Respondent

JUDGE:

MATHEWS J

DATE OF ORDER:

29 SEPTEMBER 1999

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The time for filing all notices of appeal in this matter be extended to 30 September 1999.

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 1058 OF 1999

BETWEEN:

PERUMALL PILLAY
First Applicant

DAVAGEIAMAH PILLAY
Second Applicant

RANGINI PILLAY
Third Applicant

And

PRAGASEN PILLAY
Fourth Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:	MATHEWS J
DATE:	29 SEPTEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for an extension of time to file various notices of appeal from the judgment of Wilcox J given on 25 August 1999.  Under Order 52 rule 15, a notice is required to be filed and served within twenty-one days after the pronouncement of judgment. Under subrule 15(2) the court or judge may at any time give leave to file and serve a notice of appeal outside that time upon special reasons being shown.

2. The judgment in this case having been given on 25 August 1999, the twenty-one days expired on 15 September.  It was the following day, 16 September, that the applicants’ then solicitor was instructed to lodge these appeals, and on the same day he made the present application.

3. The cases themselves are relatively unusual.  The proceedings before Wilcox J involved twenty different proceedings, all of them raising the same point of law.  Each proceeding was an application to review a decision of the Immigration Review Tribunal affirming a decision of the respondent's delegate to refuse to grant the applicant a family visa pursuant to subclass 806 of Schedule 1 of the Migration Regulations.  The point of law was the validity or otherwise of clause 3002 of Schedule 3 of the regulations.  In the event his Honour found that the clause was valid with the inevitable result that each of the applications was dismissed.

4. Of the twenty applicants who were before Wilcox J, two have already lodged notices of appeal within time.  Three do not wish to appeal.  The remaining fifteen are covered by the present application.

5. The affidavit in support of the application, being the affidavit of Mr Cuelho, the applicants’ then solicitor, shows that the applicants come from diverse cultural and language backgrounds, which made it difficult or impossible for him to communicate with them directly after the delivery of Wilcox J’s judgment.  He needed to do so through a migration agent who has staff who speak the various relevant languages.  This impeded and delayed communication with the applicants, and it was not until 16 September, the day after the time had expired for lodging the appeals, that the migration agent told Mr Cuelho that the present applicants wished to appeal.  The application, as already mentioned, was lodged on the same day.

6. The twenty-one day time limit for lodgment of appeals should impose little difficulty or inconvenience where direct communication between solicitor and client is possible.  But the multiplicity of prospective appellants in this case and the diversity of their language backgrounds take this case out of the ordinary.  This in itself is sufficient, in my opinion, to constitute “special reasons” for extending the time to appeal, given the fact that the applications were made only the day after the expiration of the time limit.  It goes without saying that “special reasons” which might be sufficient to justify such a short extension of time might be quite inadequate to allow a longer extension.

7. Ms Nanson for the respondent does not consent to the extension of time.  She urges that the appeals are without merit and that the applications should be rejected.  Highly relevant in this respect is the fact that two appeals have already been lodged from the judgment of Wilcox J, and the matter will therefore be before the Full Court in any event.  It appears to me that the balance of convenience strongly favours that the appeal should resolve the issues between all of those who wish to raise this matter of law.

8. Accordingly, although the merits of an appeal might in many cases be a material factor in directing whether to grant an extension of time, in this case it does not have any substantial bearing on the issues.  I therefore propose to make the orders sought in the application.

9. Discussion has taken place as to how these fifteen matters can be consolidated with the two matters which are already under appeal.  All matters were dealt with together by Wilcox J and it is obviously in all parties’ interests, and those of the court, for the appeals also to be conducted in conjunction with each other, and probably with a single appeal book covering all appeals.  However, the two matters which are already under appeal are not before me and it would be inappropriate for me to make any formal order consolidating the proceedings. In the circumstances I recommend that these fifteen appeals be joined with the two existing appeals and henceforth go through the system together, and that if considered otherwise appropriate a single appeal book be filed in relation to all appeals.

10. I extend the time for filing and serving all notices of appeal in this matter to Thursday 30 September 1999.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mathews.

Associate:

Dated:             11 October 1999

Counsel for the Applicant:	Mr Newman
Solicitor for the Applicant:
Counsel for the Respondent:
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	19 September 1999
Date of Judgment:	19 September 1999