Wold-Mariam, Ephrem Dehne v Minister for Immigration and Multicultural Affairs

[1997] FCA 1213

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Application to extend time for filing of appeal - consideration of principles relevant to the discretion to extend time under O52 r15(2) Federal Court Rules - consideration of applicant’s prospects on appeal when application for review dismissed as incompetent for failure to file application within period specified by s478 of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth) s 478
Federal Court Rules O 52 r 15(2)

Gallo v Dawson (1990) 64 ALJR 458 - Foll
Jones v The Queen (NTG15 of 1984, unreported, Full Court Darwin 17 August 1984) - Foll
Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164 (FC) - Foll
Wassim Mohamad Al Achrafi v Minister for Immigration and Multicultural Affairs (Beaumont J, NG 36 of 1997, 10 July 1997) - Foll
Mahboob v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 398 - Foll
Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 (FC) - Foll

EPHREM DEHNE WOLD-MARIAM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No QG 128 of 1997

COOPER J
BRISBANE
10 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 128  of   1997

BETWEEN:	EPHREM DEHNE WOLD-MARIAM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		COOPER J
DATE OF ORDER:		10 NOVEMBER 1997
WHERE MADE:		BRISBANE

THE COURT ORDERS THAT:

1. The application for an extension of time to appeal against the order of Kiefel J made on 14 August 1997 is dismissed.

2. The applicant pay the respondent’s costs of and incidental to this application to be taxed if not agreed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	QG 128 of 1997

BETWEEN:	EPHREM DEHNE WOLD-MARIAM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	COOPER J
DATE:	10 NOVEMBER 1997
PLACE:	BRISBANE

REASONS FOR JUDGMENT

On 14 August 1997 Kiefel J dismissed as incompetent an application by Mr Wold-Mariam for review of a decision of the Refugee Review Tribunal made on 21 June 1996. The basis of her Honour’s decision was that the applicant for review had not filed his application within the time specified in s 478 of the Migration Act 1958 (Cth) (“the Migration Act”).

On 4 September 1997 Mr Wold-Mariam filed an application in the High Court of Australia for special leave to appeal from the decision of Kiefel J. By letter dated 5 September 1997 the Australian Government Solicitor advised Mr Wold-Mariam that s 33(2) of the Federal Court of Australia Act 1976 (Cth) prohibited an appeal from a decision of a single judge of the Court to the High Court. The letter further advised him that the proper jurisdiction to hear any appeal lay with a Full Court of this Court. On 8 September 1997 the Deputy Registrar of the High Court of Australia returned the application for special leave to appeal and advised the applicant that no appeal lay to the High Court from a decision of a single judge of this Court.

On 10 September 1997 an application to extend the time to appeal from the judgment of Kiefel J was filed by Mr Wold-Mariam.  In his written case filed in support of the application, Mr Wold-Mariam deposes to the fact that he is not legally represented, although he has in the past received some general assistance from a solicitor with the South Brisbane Immigration & Community Legal Service Inc, and was confused as to where he should appeal from the judgment of Kiefel J.

The power to extend the time to appeal under O 52 r 15(2) of the Federal Court Rules is a discretionary power.  The object of the power is to prevent an injustice by the operation of a time limit fixed by the Rules of Court.  To succeed, the applicant for the extension must demonstrate on the material filed in support of the application that to refuse the application would constitute an injustice.  Where the application is to extend the time to appeal, this necessarily involves an examination of the applicant’s prospects of success on appeal:  Gallo v Dawson (1990) 64 ALJR 458 at 459; Jones v The Queen (NTG15 of 1984, unreported, Full Court Darwin 17 August 1984 at p 13 of the joint reasons).

The grounds of the appeal which the applicant wishes to bring may be broadly divided into three categories :-

(a)That her Honour erred in concluding that the Federal Court had no jurisdiction because the twenty-eight day period for filing the application for review had expired;

(b)That failure to file within the twenty-eight days was not the applicant’s default, but rather the default of the solicitor with the South Brisbane Immigration & Community Legal Service. In those circumstances, on the proper construction of s 478(1) of the Migration Act, there has been no relevant failure on the part of the applicant to file within the twenty-eight day period. To impose a time bar when the applicant was actively seeking review would be to adopt a construction which was “not fair and adequate”.

(c)That he had substantial grounds to have the decision of the Refugee Review Tribunal set aside.

Section 478 of the Migration Act provides :-

“478(1)          An application under section 476 or 477 must:

(a)       be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976;  and

(b)be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision.

(2)      The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b).”

The effect of s 478(1) is to condition the jurisdiction of the Court to undertake a review to those applications lodged for review with the registry of the Court within twenty-eight days of the applicant being notified of the decision. Absent lodgement of the application within time the Court has no authority to undertake a review: Long v Minister for Immigration, Local Government and Ethnic Affairs (1996) 65 FCR 164 (FC) at 166, 174, 178; Wassim Mohamad Al Achrafi v Minister for Immigration and Multicultural Affairs (Beaumont J, NG 36 of 1997, 10 July 1997 at p 4);  Mahboob v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 398 at 400.

It is irrelevant for the purposes of s 478(1) why the application for review was not filed within the twenty-eight day period. In Minister for Immigration and Multicultural Affairs v Ozmanian (1996) 141 ALR 322 (FC), Sackville J, with whom Jenkinson and Kiefel JJ agreed, said (at p 346 - 347) :-

“I should add that Pt 8 does contain stringent time limits. An application must be lodged within 28 days of notification of the tribunal’s decision and the court has no power to extend the period: s 478. Thus, where an individual, whether through ignorance or mistake, or for some other reason, fails to lodge an application in time, no relief is available under Pt 8 of the Migration Act. Whatever view is taken about the fairness of this requirement, it does not constitute a denial of jurisdiction to the court to review judicially-reviewable decisions. It is also necessary to take into account the jurisdiction of the High Court under s 75(v) of the Constitution, which may allow aggrieved persons to seek relief outside the 28 day period.”

Nor can this Court extend the time for filing an application beyond the twenty-eight day period. That is expressly prohibited by the terms of s 478(2): Long v Minister for Immigration, Local Government and Ethnic Affairs at 174.
On the hearing before Kiefel J, Mr Wold-Mariam confirmed that on 2 July 1996 he received notification from the Tribunal of its decision. Upon the expiration of the twenty-eight day period Mr Wold-Mariam lost his right of review under s 475(1)(b) of the Migration Act. Thereafter, his ability to challenge the decision of the Minister or the Refugee Review Tribunal to refuse him a protection visa lay, if at all, in the original jurisdiction of the High Court of Australia under s 75(v) of the Constitution.

Unless the applicant can succeed on grounds (a) or (b) set out above, the appeal from the order of Kiefel J will fail. For the reasons set out above the applicant cannot succeed on those grounds. As to ground (a), Kiefel J was correct in the view her Honour took of the operation of s 478 of the Migration Act. As to ground (b), the decision in Ozmanian means that the reason why the application was not filed within time is irrelevant.  Whether or not the responsibility for the failure lies with the solicitor or the applicant, the fact that filing did not occur in the twenty-eight day period is decisive and against the applicant.

Absent a jurisdiction to consider the merits of a review, ground (c) will not assist the applicant to obtain an extension of time to appeal.

Because any appeal to a Full Court from the decision of Kiefel J has no reasonable prospect of success there is no injustice in refusing an extension of time to appeal.

Accordingly the application for an extension of time to appeal against the order of Kiefel J made on 14 August 1997 is dismissed with costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper

Associate:
Dated:            10 November 1997

Applicant in Person:	Mr Wold-Mariam
Solicitor for the Respondent:	M Belcher, Australian Government Solicitor
Date of Judgment:	10 November 1997