“VAS” v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 922

FEDERAL COURT OF AUSTRALIA

“VAS” v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 922

“VAS” v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
V347 of 2002

MADGWICK J
15 JULY 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	V347 of 2002

BETWEEN:	“VAS” APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	15 JULY 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Time to file and serve a notice of appeal from the judgment of Finkelstein J dated 7 February 2002 be extended to 4:00pm Friday 19 July 2002.

2.The parties are to pay their own costs.

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	V347 of 2002

BETWEEN:	“VAS” APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	15 JULY 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. This is an application for extension of time in which to file a notice of appeal from the judgment of Finkelstein J given on 7 February 2002 at Melbourne.  The notice of appeal was not filed and served within the time limited by O 52 r 15 of the Federal Court Rules.

2. Before Finkelstein J, the applicant had been legally represented and his solicitor gave him a copy of the learned primary judge's judgment about two days after it was handed down.  However, the applicant whose English is limited and who was apparently not dealing with an Albanian speaking solicitor said the solicitor could not give him a detailed explanation of Finkelstein J's reasons due to the language difficulties.  He was, however, told that he could appeal to the Full Court.  The applicant indicated he wished to do so.  However, it appears that the applicant could not satisfactorily arrange payment of the solicitor's fees and the solicitor therefore declined to act further.

3. The applicant apparently did nothing further about attempting to appeal although many people in immigration detention manage to do so.  About two or three weeks after the conversation with his former solicitor, the applicant was suddenly transferred from the

   
   
   

   detention centre at Maribyrnong in Victoria to the Villawood Detention Centre, near Sydney.  He does not know why he was so transferred, and there has been no explanation provided. 

4. There is no doubt that the applicant’s English is limited and while this is a common position for many refugee applicants, it is also not shown that there were other Albanian speakers at hand for him in Maribyrnong.  In any event, his difficulties were greatly compounded by the effects of a war injury in Kosovo which left him blind in one eye and with severely limited vision in the other.  He has apparently had trouble obtaining eye drops and appropriate spectacles.   His present solicitor has acted with due promptness.  I think the fact of his near blindness and the change in his accommodation arrangements takes the matter out of the ordinary as to his being, as it were, excused for failing to file a notice of appeal within time.

5. As to the prospects of success, the learned primary judge was clearly uneasy as to certain factual findings made by the Refugee Review Tribunal but the applicant's road on appeal in respect to those matters appears difficult.  Perhaps a more promising basis for the appeal, is the claim that his Honour erred in finding that the Tribunal complied with “the natural justice provisions of the Act” when it provided the applicant with material that the applicant asserts a reasonable person could only have supposed favoured the applicant’s case and then, without notice to the applicant, unreasonably interpreted that material as if it were unfavourable to the applicant’s case.

6. Finkelstein J had rejected the applicant’s argument upon the basis that, as the applicant was legally represented, he ought to have understood that the material provided to him might be used to his disadvantage as well as to his advantage.  The matter would appear to come down to a finding of fact as to whether, in all of the circumstances, the possibility that the independent material might give rise to an adverse finding was so lacking in obviousness that the Tribunal should have indicated how the material might be used to the applicant's disadvantage.  At least as to the summaries of the independent material by the Tribunal, it seems to me that it is reasonably arguable that in effect, his Honour erred in his factual assessment of this matter.  Subject to the disputed effect of the privative clause in the Migration Act 1958 (Cth) at the time his case fell for assessment, the Court could address this matter under s 39B of the Judiciary Act1903 (Cth).

7. For those reasons, I think the time to file a notice of appeal should be extended to 4:00pm, Friday 19 July 2002 to enable the appeal to proceed.  Each party shall bear his own costs.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            24 July 2002

Solicitor for the Applicant:	Mr Michael Jones of Michael Jones, Solicitor
Counsel for the Respondent:	Mr G Kennett
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	15 July 2002
Date of Judgment:	15 July 2002