Shams v Minister for Immigration and Multicultural Affairs

[2001] FCA 1793

FEDERAL COURT OF AUSTRALIA

Shams v Minister for Immigration and Multicultural Affairs [2001] FCA 1793

SAEED SHAMS v MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS

W 181 of 2001

CARR J
12 DECEMBER 2001
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 181 OF 2001

BETWEEN:	SAEED SHAMS Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	12 DECEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The time in which the applicant may file and serve a notice of appeal from the judgment of Hill J given on 18 September 2001 be extended to 21 days from today’s date.

2.The costs of this motion be costs in the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 181 OF 2001

BETWEEN:	SAEED SHAMS Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE:	12 DECEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. This is a motion on notice pursuant to which the applicant applies for an extension of time in which to file and serve a notice of appeal from the judgment of a Judge of this Court given on 18 September 2001. The application is pursuant to s 25(2)(b) of the Federal Court of Australia Act 1976 (Cth) when read with Order 52 rule 15 of the Federal Court Rules.

2. Order 52 rule 15(1) relevantly provides that a notice of appeal shall be filed and served within 21 days after the date when the judgment appealed from was pronounced, or within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within that period of 21 days.  Order 52 rule 15(2) provides that a Court or a Judge “for special reasons” may at any time give leave to file and serve a notice of appeal.

3. As I have mentioned, Hill J pronounced judgment on 18 September 2001.  His Honour dismissed the applicant’s application for review of a decision of the Refugee Review Tribunal which had confirmed a decision of a delegate of the respondent not to grant him a protection visa.  To comply with the rules, a notice of appeal from that decision should have been filed and served by 9 October 2001 – see Order 3 rule 2(2) of the Federal Court Rules.

4. On 26 October 2001 the applicant faxed a letter in Arabic to the Court.  That letter, when subsequently translated, stated that the applicant would like to appeal “to the Federal Court”.  I think that the letter can be taken as meaning that the applicant wished to appeal against the judgment of Hill J.  It can be seen from that fax that the applicant was then in the Albany Regional Prison.  A Registrar of the Court then wrote to the applicant advising him that a notice of appeal had to be filed and served within 21 days after the date when the judgment appealed from was pronounced and suggesting that he might wish to seek leave. 

5. On 28 November 2001 the applicant filed the notice of motion seeking an extension of time.  Other relevant parts of that notice include the following statement:

   “Because I have been in prison and have no access to interpreters or legal representative, I request that the Full Federal Court would grant me an extention of time …Presently I am seeking legal advice in this matter and will further file supporting submissions.”

6. No supporting submissions have been filed.

7. The applicant was not legally represented when this motion came on for hearing today.  He made some submissions to me which I did not find of any assistance.

8. Mr T J Carey, counsel for the respondent, formally opposed the motion.  As a matter of fairness, Mr Carey drew my attention to a recent decision of Mansfield J who, in very similar circumstances to this matter, extended the time for filing and service of a notice of appeal.  With similar fairness, Mr Carey drew my attention to the fact that the applicant’s motion was filed about 1½ months out of time but acknowledged that the fax sent to the Court on 26 October 2001 was a relevant consideration.

9. One of the leading cases on the principles to be applied to a motion such as this is the often-cited case of Jess v Scott (1986) 12 FCR 187.

10. The Full Court in that case cited, with apparent approval, R v Secretary of State for the Home Department; ex parte Mehta [1975] 1 WLR 1087, a decision of the English Court of Appeal.

11. In accordance with the guidance provided by those cases, I have had regard to the following matters. 

12. First, I note that the applicant formally indicated his wish to appeal by the fax to which I have referred above at a time which was only 17 days beyond that limited for filing a notice of appeal.  That is a relatively short period. 

13. Secondly, I take into account the fact that the applicant has not had legal representation during the period since Hill J’s judgment was delivered.  Thirdly, I take into account the fact that the applicant does not speak English.  Fourthly, I note that at all relevant times the applicant has been in prison.  

14. I have read Hill J’s reasons for judgment which concluded in these terms:

    “However, as I have said, it seems clear enough from the Tribunal’s reasons that the Tribunal simply did not accept that the applicant was arrested or detained in Iran, as he said he was, or that he had departed from Iran in the circumstances he described.  It is not for this Court to substitute its view of the facts for that of the Tribunal.  So to do is to engage in merits review rather than judicial review.”

15. My reading of Hill J’s reasons suggests to me that the prospects of this appeal being successful are not very strong.  Nonetheless, after weighing that factor in the balance against the matters to which I have referred, and having regard to the absence of any apparent prejudice to the respondent, I think that in this case, those factors amount to special reasons which justify the grant of leave to appeal out of time.  The applicant will have leave to file and serve a notice of appeal within 21 days of today’s date.  The costs of this motion will be costs in the appeal.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Carr.

A/g Associate:

Dated:             12 December 2001

The Applicant appeared in person:
Counsel for the Respondent:	Mr T J Carey
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 December 2001
Date of Judgment:	12 December 2001