SBNC v Minister for Immigration and Multicultural Affairs

[2006] FCA 843

FEDERAL COURT OF AUSTRALIA

SBNC v Minister for Immigration & Multicultural Affairs [2006] FCA 843

PRACTICE & PROCEDURE – application for extension of time within which to appeal against judgment of judge dismissing application for review of decision of respondent’s delegate not to grant applicant and her family protection visa – Federal Court Rules, O 52 r 15 – where purported notice of appeal 11 days out of time – where respondent opposed application on ground that proposed appeal has no prospects, or no reasonable prospects, of success – held, appeal not futile – period of delay short – adequate explanation for delay – serious consequences of decision for applicants – no prejudice to respondent if application granted – application granted.

MIGRATION – application for protection visa – where delegate found that applicant feared persecution for Convention reason – whether fear of persecution well-founded.

Migration Act 1958 (Cth) s 5, s 91R
Federal Court Rules O 52 r 15

Jess v Scott (1986) 12 FCR 187 referred to
Howard v Australian Electoral Commission [2000] FCA 1767 referred to
Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 referred to

SBNC, SBPC, SBQC & SBRC v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

SAD 64 OF 2006

BESANKO J 
5 JULY 2006 
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	64 OF 2006

BETWEEN:

SBNC
FIRST APPLICANT

SBPC
SECOND APPLICANT

SBQC
THIRD APPLICANT

SBRC
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE:

BESANKO J

DATE OF ORDER:

5 JULY 2006

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:

1.The title of the respondent be amended so as to delete the words ‘and Indigenous’.

2.The time for the filing and service of the notice of appeal is extended up to and including 11 April 2006. 

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	64 OF 2006

BETWEEN:

SBNC
FIRST APPLICANT

SBPC
SECOND APPLICANT

SBQC
THIRD APPLICANT

SBRC
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	BESANKO J
DATE:	5 JULY 2006
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. This is an application for an extension of time within which to appeal from a judgment of a judge of this Court.  The judge heard and determined an application for judicial review of a decision of a delegate of the respondent made under the Migration Act 1958 (Cth) (‘the Migration Act’).

2. Under O 52 r 15(1) of the Federal Court Rules, a notice of appeal must be filed and served within 21 days after the date when the judgment appealed from was pronounced.  The judgment in this case was pronounced on 10 March 2006 and the purported notice of appeal was filed and served on 11 April 2006.  The purported notice of appeal is therefore some 11 days out of time.  Order 52 r 15(2) provides that notwithstanding the time limit, ‘the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal’.

3. The applicants are a family of Fijians who came to Australia on 27 November 2004.  The first applicant is the wife of one of the other applicants and she is the mother of the two other applicants.  The first applicant is the only person who has made a claim to be a refugee.

4. On 7 December 2004 the first applicant applied for a protection visa, and she included the other applicants in her application.  On 7 February 2005 the first applicant was advised that the delegate had refused the application for a protection visa.

5. The first applicant claimed that she fell within the terms of the Refugees Convention as amended by the Refugees Protocol (‘the Convention’): see s 5 of the Migration Act. The delegate described the first applicant’s claim as follows:

   ‘The applicant claims that her family have been abused and harassed as a result of her political involvement around issues of social and economic justice for Fijians of Indian origin.  She claims that she feels for the future of her children who have been abused and threatened at school and that her family had been tormented and harassed generally by indigenous Fijians because of her political activities.  She claims to fear violence and torture if she returned to Fiji.’

6. The delegate found that the harm feared involved serious harm and systematic and discriminatory conduct, as outlined in s 91R of the Migration Act, and that the Convention ground of political belief was the essential and significant reason for the harm feared, again as outlined in s 91R. The delegate therefore found that the first applicant feared persecution for a Convention reason.

7. The delegate found, however, that the first applicant did not have a well-founded fear of persecution.  He noted that the first applicant claimed to fear violence from indigenous Fijians if she returned to Fiji and that repeated complaints to the Fijian police had been ignored.  However, he noted that the first applicant made no claims that violence had actually been perpetrated upon either her or any member of her family.

8. The delegate referred to country information available to him which referred to a ‘litany’ of economic and social discrimination against Indo-Fijians and in favour of indigenous Fijians.  However, there was no evidence that systematic and discriminatory acts of violence were being perpetrated against the Indo-Fijians or their supporters.  The delegate found that it was credible that complaints to the Fijian police in regard to threats of violence and abuse allegedly suffered by the applicant and her family had not resulted in an effective response, but he said that he had no evidence that if such threats were considered likely to be carried out there would be no appropriate response from the Fijian authorities. 

9. As the first applicant did not have a well-founded fear of persecution, the claims for a protection visa were rejected. 

10. The judge held that there was no jurisdictional error in the approach of the delegate.  He said that the delegate’s approach reflected the way in which the first applicant had put her claim of a well-founded fear of persecution.

11. The first applicant has provided an explanation for the delay in the filing and serving of the notice of appeal.  Before the judge, the applicants were represented by solicitors and counsel.  She was first advised by her solicitors of the judgment pronounced on 10 March 2006 on 3 April 2006.  In the letter of advice from her solicitors, she was told that they were seeking the advice of counsel as to the prospects of success of an appeal to the Full Court of this Court and it seems that that caused some further delay in the filing and service of the notice of appeal.  I note that the explanation for the delay put forward by the first applicant is not challenged by the respondent.

12. The respondent opposes the application for an extension of time on the ground that the proposed appeal has no prospects, or no reasonable prospects, of success.

13. The proposed grounds of appeal are as follows:

    1The learned Federal judge was in error in not determining that the respondent had committed jurisdictional error because the respondent constructively erred in its application as to what amounted to serious harm under s 91R(2) of the Migration Act.

    2The learned Federal judge was in error in not determining that the respondent committed jurisdictional error by failing to make findings in relation to claims made by the juvenile applicants that they would specifically suffer from persecution in their education.

14. The leading authority on the circumstances in which an extension of time may be granted under O 52 r 15 is Jess v Scott (1986) 12 FCR 187. In that case, the Court (Lockhart, Sheppard and Burchett JJ) said at 195:

    ‘What is needed to justify an extension of time is indicated in r 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 a 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.

    …

    It should not be overlooked that r 15(2) enables leave to be given “at any time”; the “special reasons” relevant to such a power cannot but describe an elastic test, suitable for application across a wide range of situations, from an oversight of a day to a neglect persisted in during a prolonged period.  It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late.  “Special reasons” must be understood in a sense capable of accommodating both types of situation.  It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.’

15. Considerations relevant to the exercise of the power are discussed in Howard v Australian Electoral Commission [2000] FCA 1767 and Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627.

16. It is neither possible nor appropriate for me to reach any precise conclusion as to the prospects of success of the proposed appeal.  I am satisfied that an appeal is not futile.  I think that it is arguable that the delegate took an unduly narrow approach to the issue of whether there was a well-founded fear of persecution and that there was a jurisdictional error.

17. The period of delay is short and there is an adequate explanation for the delay.  The decision is obviously one which has serious consequences for the applicants.  There is no prejudice to the respondent if an extension of time is granted.  In my opinion, having regard to those matters and my conclusion that an appeal is not futile, it is appropriate to grant an extension of time.

18. I extend the time for the filing and serving of the notice of appeal up to and including 11 April 2006.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

Associate:

Dated:             5 July 2006

The Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr P d'Assumpcao
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 June 2006
Date of Judgment:	5 July 2006