SBBW v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 770

FEDERAL COURT OF AUSTRALIA

SBBW v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 770

SBBW v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 574 of 2003

LANDER J
ADELAIDE
22 JULY 2003

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 574 OF 2003

BETWEEN:	SBBW APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	LANDER J
DATE OF ORDER:	22 JULY 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.Application dismissed.

2.Applicant to pay the respondent’s costs. 

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 574 OF 2003

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

JUDGE:	LANDER J
DATE:	22 JULY 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application to extend time within which to appeal from a decision of a Judge of this Court to the Full Court of this Court. This application comes before me pursuant to s 25(2)(b) of the Federal Court of Australia Act 1976.  The decision of the single Judge was given on 3 July 2002 and any notice of appeal should have been filed and served within 21 days of that date.  None was. 

2. The application for an extension of time and a draft notice of appeal were filed on 30 June 2003.  The applicant has delayed nearly one year since the giving of the decision.  However, the Federal Court Rules provide that the Court for special reasons may give leave to file and serve a notice of appeal outside the time prescribed by the Rules:  O 52 r 15(2). 

3. The applicant, who is a citizen of Iran, arrived in Australia on 6 June 2001 and applied for a protection visa on 9 August 2001.  The application was refused and on 8 February 2002 the applicant sought a review of that decision in the Refugee Review Tribunal.  Between 26 February 2002 and 8 April 2002 the applicant was apparently represented by a solicitor but when the matter came on before the Refugee Review Tribunal he was assisted by a migration agent.  Between that time and the decision of the single Judge of this Court, the applicant was unrepresented. 

4. The Tribunal dismissed the application for a review.  It rejected the applicant’s claim that the applicant was a baptised member of the Armenian Apostolic Church.  The Tribunal rejected the applicant’s evidence which the Tribunal found lacked credibility.  The Tribunal found that some aspects of the applicant’s evidence were fabricated and it gave six separate reasons for those findings.  Because it rejected the applicant’s claim that he was a member of a Christian Church it rejected the applicant’s claim that he was liable to persecution by reason of that membership. 

5. The applicant applied to a Judge of this Court pursuant to s 39B of the Judiciary Act 1903 for a review of that decision and for an order quashing the decision and an order directing the Tribunal to re-determine the application according to law.  Relief was sought on the basis that the Tribunal had exceeded jurisdiction in affirming the Minister’s delegate’s decision not to grant the visa and erred in law at arriving at the decision to affirm.  Whilst the application claimed that the Tribunal had exceeded jurisdiction the applicant’s claim to the single Judge, as that Judge’s reasons show, merely sought a review of the decision on the merits.  The Judge rejected the application. 

6. The draft notice of appeal again raises the merits of the Tribunal’s decision.  It complains that the learned Judge ‘erred in failing to find that the Refugee Review Tribunal erred in not taking into account my lack of education when it disbelieved my answers about my religion’.  The complaint in the proposed notice of appeal is directed to the finding of the Refugee Review Tribunal that the applicant’s evidence lacked credibility. 

7. The applicant has said that the reason for the failure to appeal within time arose by reason of a failure of communication between him and his solicitors.  He has told me this morning that shortly after the decision was given he spoke to a solicitor and instructed him to appeal.  He thereafter believed that an appeal had been lodged.  He said that about three months after giving those instructions he made an enquiry of the authorities and was advised that no appeal had been lodged.  He said that he was later told by a solicitor that she had decided not to appeal but instead to write a letter to the Minister.  He told me that he told that solicitor that was not a decision she was entitled to make and that she should have taken his instructions. 

8. He again spoke to another solicitor and again believed that the solicitor had accepted his instructions to lodge the notice of appeal.  Eventually, due to the failure of communication or the fault of the solicitors, he filed this application himself and the supporting affidavit and draft notice of appeal. 

9. ‘Special reasons’ may be established if the Court thinks the case to be unusual or there is some other reason to justify departure from the general rule:  Jess v Scott (1986) 12 FCR 187. Even if the Court is satisfied that special reasons exist the exercise of the power to extend time is discretionary. In the circumstances of this case it is not necessary to make any final decision as to whether special reasons exist. That is because the proposed draft notice of appeal does not contain any ground apart from a complaint about the Refugee Review Tribunal’s finding on credibility. In those circumstances there is little or no prospect of the appeal succeeding. The applicant is simply proposing to ask the Full Court, like he did the single Judge, to review the merits of his application. Even if I thought that the applicant had made out the threshold question of ‘special reasons’, inevitably, the application would have to be dismissed.

10. Application dismissed.  The applicant must pay the respondent’s costs. 

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

Associate:

Dated:             24 July 2003

Applicant appeared in person.
Counsel for the Respondent:	Ms Maria George
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	22 July 2003
Date of Judgment:	22 July 2003