WABD v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 299

FEDERAL COURT OF AUSTRALIA

WABD v Minister for Immigration & Multicultural & Indigenous Affairs
[2002] FCA 299

MIGRATION - application for extension of time in which to appeal – no point of principle.

WABD v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W500 of 2001

CARR J
13 MARCH 2002
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRLIA DISTRICT REGISTRY	W500 OF 2001

BETWEEN:	WABD Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	CARR J
DATE OF ORDER:	13 MARCH 2002
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.Leave is granted to the applicant WABD to file and serve by 25 March 2002 a notice of appeal from the judgment given on 17 January 2002 dismissing his application to review a decision of the Refugee Review Tribunal.

2.Costs of the application to extend time to appeal will 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 AUSTRLIA DISTRICT REGISTRY	W500 OF 2001

BETWEEN:	WABD Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	CARR J
DATE:	13 MARCH 2002
PLACE:	PERTH

REASONS FOR JUDGMENT

INTRODUCTION

1. This is an application for an extension of time in which to file and serve a notice of appeal from a judgment of French J given on 17 January 2002.  On that date his Honour dismissed the applicant’s application for an order of review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the respondent to refuse the grant of a protection visa to the applicant. 

   FACTUAL AND PROCEDURAL BACKGROUND

2. On 17 January 2002 his Honour heard and dismissed the application.  The report of listing on the court file indicates that orders were made as follows:

   “1.      Application dismissed.

   2.       Applicant to pay respondent’s costs of the application.”

3. In an affidavit filed in support of his application, the applicant says that he did not understand that the judge “reject my claims in hearing” and because of that was waiting for reasons.  The respondent disputes that assertion, but has not adduced any contrary evidence.  It would appear that his Honour’s reasons were published on or about 30 January 2002.  

4. From the applicant’s affidavit it would appear that he received a copy of the reasons for judgment on 6 February 2002.  He swears that he filled in a form on 10 February 2002 and caused it to be faxed to the Court on 12 February 2002.  It is apparent (from correspondence on the Court file) that this form was a notice of appeal.  

5. It is also clear from the papers before me that judgment was in fact given on 17 January 2002.  In those circumstances any notice of appeal had to be filed on or before 7 February 2002.  The applicant was thus 5 days out of time in lodging his notice of appeal.  But I take into account the fact that he did not receive the judge’s reasons until 6 February 2002 and then lodged a Notice of Appeal six days later.  

6. My jurisdiction to hear this application is conferred by s 25(2)(b) of the Federal Court of Australia Act 1976 (Cth). The applicable rule is Order 52 rule 15(2) which relevantly provides that a judge may, for special reasons, give leave to file and serve a notice of appeal, notwithstanding an applicant’s failure to file and serve a notice of appeal within the times referred to in Order 52 rule 15(1).

7. It is customary to resort to the most useful decision of a Full Court of this Court in Jess v Scott (1986) 12 FCR 187 when deciding applications such as these. But, as the Full Court in that case was at pains to point out (at 196), a discretion to relax the requirements of general rules should not itself become entangled in a web of rules spun out of the Court’s discretionary decisions. Their Honours added:

   “Decisions are not authorities upon the facts but upon principles; the facts must be regarded as unique to the particular case.”

8. In this matter I give very great weight to the fact that, in practical terms, (when one bears in mind the weekend 9/10 February 2002) the applicant was only three days out of time in lodging his notice of appeal and had only had possession of the Judge’s reasons for 6 days.  No possible prejudice to the respondent has been demonstrated by the delay in lodging the notice of appeal.  On the other hand, there is at least the potential of a great injustice to the applicant if there is any merit in his proposed appeal.   

9. In those circumstances, I consider that special reasons have been shown for granting to the applicant an extension of time in which to file and serve a notice of appeal.  The respondent submitted that the circumstances were not special.  But as Jess v Scott shows, a special reason is one that takes the case out of the ordinary (see p 195).  I think that the circumstances of this case are out of the ordinary. 

10. The only other contrary argument advanced by the respondent was that the appeal has no real prospect of success and that no useful purpose would be served by granting the extension of time.   

11. Notwithstanding the Full Court caveat to which I have just referred, I derive some comfort in the exercise of my discretion from the observations of Ackner LJ in Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517. That was a case in which an appeal had been lodged three days out of time because the appellant’s legal advisers had overlooked an alteration of the time permitted for the appeal. After referring to that circumstance, Ackner LJ (with the concurrence of Robert Goff LJ and Browne-Wilkinson LJ) said this (at 21):

    “There is no question of any prejudice arising to the plaintiffs in the circumstances which I have described, and in that situation there was in my judgment absolutely no need to go into the complex and time consuming question whether or not there was a good arguable case on the appeal.  There is no invariable rule which requires that consideration and it would obviously involve the very reverse to what the new procedure is designed to achieve if on every application to extend time for leave to appeal there was a pre-appeal hearing in order to consider what were the prospects of success.”

12. That passage (apart from the last sentence) was part of a passage set out by the Full Court in Jess v Scott (at p 192) and later referred to (at 195) with approval when the Full Court indicated that Order 52 rule 15(2) was not to be construed as if the discretion of this Court to waive the rules was itself fettered by further rules.

13. In the circumstances of this particular case, I do not think that the applicant should be obliged to show a reasonable prospect of success or a good arguable case before being granted an extension of time in which to lodge his notice of appeal.  

14. In any event, if I am wrong in that view, I have examined the reasons of the Refugee Review Tribunal and those of the learned primary judge.  I accept that, on a quick examination of both those reasons, the applicant’s case does not appear to be a strong one.  I attach some weight to that factor in the exercise of my discretion.  Nevertheless, I do not think that that factor outweighs what I consider would be an injustice to the applicant if he were not allowed an extension of time in which to lodge his notice of appeal.  Apparently hopeless cases quite often turn out, on more careful scrutiny, to have merit.  

15. I will make formal orders in these terms:

    1.Leave is granted to the applicant WABD to file and serve by 25 March 2002 a notice of appeal from the judgment given on 17 January 2002 dismissing his application to review a decision of the Refugee Review Tribunal.

    2.Costs of the application to extent time to appeal 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 Justice Carr.

Associate:

Dated:             13 March 2002

The Applicant appeared in person:
Counsel for the Respondent:	Mr A C Willinge
Solicitor for the Respondent:	Messrs Blake Dawson Waldron
Date of Hearing:	13 March 2002
Date of Judgment:	13 March 2002