Ahmed v Minister for Immigration & Multicultural Affairs [2002] FCAFC 60

Ahmed v Minister for Immigration & Multicultural Affairs [2002] FCA 284

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)

The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002.  Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

• All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.
• All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. 
• All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

Ahmed v Minister for Immigration & Multicultural Affairs [2002] FCA 284

Federal Court of Australia Act 1976 (Cth) s 24

Migration Act 1958 (Cth) s 476(1)

Federal Court Rules O 52 r 15(1), r 15(2)

Jess v Scott (1986) 12 FCR 187 referred to

Kalaba v The Queen (1996) No. ACT G14 of 1996 (Finn J, 13 September 1996, unreported) referred to

Howard v Australian Electoral Commission [2000] FCA 1767 referred to

W105/99A v Minister for Immigration & Multicultural Affairs [2001] FCA 1786 referred to

ARFAN AHMED v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W455 of 2001

LEE, RD NICHOLSON and FINKELSTEIN JJ

12 FEBRUARY 2002

PERTH

THE COURT ORDERS THAT:

The application for leave to file and serve a notice of appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

THE COURT:

1                     This is an application for leave to file and serve a notice of appeal from a judge of this Court pronounced on 3 August 2001.  The appeal, if allowed, would be brought pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth).

2                     The learned primary judge dismissed an application by the applicant seeking judicial review, within the terms permitted by s 476(1) of the Migration Act 1958 (Cth) ("the Act"), of a decision of the Refugee Review Tribunal ("the Tribunal") made on 16 March 2001.  The Tribunal affirmed a decision which had been made by a delegate of the respondent on 11 January 2001 not to grant to the applicant a protection (class XA) visa. The application for a protection visa had been lodged on 3 January 2001 following the applicant's arrival in Australia on 4 December 2000. 

3                     The applicant took part in the hearing before his Honour by video-link, with the assistance of an interpreter present in the court.  At the conclusion of the hearing, the judge delivered oral reasons and dismissed the application with costs.  His Honour provided written reasons for judgment on 11 September 2001.  These were received by the applicant on 19 September.

4                     No doubt in response to receipt by the applicant of his Honour’s written reasons, the Perth Registry of the Court, on 20 September, faxed to the applicant the following documents, namely, a notice of appeal form, an application for fee exemption form and a fax cover sheet for him to complete, sign and return to the Court.  The applicant acknowledged receiving those documents.

5                     On 24 September the applicant requested that the Department of Immigration and Multicultural Affairs  fax to the Federal Court his notice of appeal and his application for fee exemption.

6                     On 25 September a notice of appeal was sent to the Federal Court by facsimile on behalf of the applicant from the Curtin Immigration Reception and Processing Centre.

7                     On 20 December the matter came before French J.  He directed that the notice of appeal be treated as an application to extend time within which the applicant could file a notice of appeal.

8                     On 28 December the applicant sent a written communication to the Registry of the Court in Perth, in which he stated that he did not know what the meaning of the word "dismissed" was when used by the primary judge.  He said he was very weak in English.  He referred to receipt on 19 September of the letter and reasons of the primary judge and stated his understanding that the time within which he should seek the right to appeal ran from that time.  It was for that reason that he had filed his application on 25 September.  It is not apparent whether the oral reasons of the primary judge were interpreted to the applicant contemporaneously with their delivery.

9                     Order 52 r 15 of the Federal Court Rules provides:

“15(1)The notice of appeal shall be filed and served-

(a)   within 21 days after-

(i)                 the date when the judgment appealed from was pronounced;

(ii)               the date when leave to appeal was granted; or

(iii)             any later date fixed for that purpose by the court appealed from; or

(b)   within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

 15(2)  Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.”

10                  The rule provides for a notice of appeal to be filed and served within 21 days after the date when the judgment appealed from was pronounced.  It also provides in subr (2) that the court or a judge "for special reasons" may at any time give leave to file and serve a notice of appeal.  The effect of this rule is that the notice of appeal by the applicant was required to be filed and served by 24 August.  However, as has been stated, his notice of appeal was not filed until 25 September.

11                  It was, therefore, submitted to this Court on behalf of the respondent that, in accordance with O 52 r 15(1), the appeal is incompetent and should be dismissed.  The respondent also relied on the fact that the applicant had not put forward any matters to constitute "special reasons" as to why he should be granted an extension of time to file and serve his notice of appeal as permitted by O 52 r 15(2).

12                  The Court accepts the foregoing circumstances of disadvantage relating to the applicant and, absence of gross delay, are capable of constituting special reasons so that leaveto appeal would not be denied provided the applicant had a case to argue.  This latter qualification arises because, in deciding whether or not to exercise the discretion to grant leave to file and serve a notice of appeal, the Court may consider whether it is indicated that the appeal would have an arguable foundation, and hence some chance of success, to make it just to allow the prospective appellant to proceed with it.  This has been recognised in Jess v Scott (1986) 12 FCR 187; Kalaba v The Queen (1996) No. ACT G14 of 1996 (Finn J, 3 September 1996, unreported) at [12]; Howard v Australian Electoral Commission [2000] FCA 1767 at [7]; and W105/99A v Minister for Immigration & Multicultural Affairs [2001] FCA 1786 at [13].

13                  The notice of appeal lodged by the applicant states only that he is not satisfied with the decision of the primary judge "because I know if I return to Pakistan I would be killed for having been Ahmedi".  That is not a ground of appeal which purports to attract the jurisdiction the Court has to act under s 476(1) of the Act.  It does not, as a notice of appeal, therefore raise a ground of appeal capable of succeeding to make it just to grant leave to file and serve a notice of appeal out of time. 

14                  We have examined the reasons of the primary judge and are of the view that they do not demonstrate any error.  The grounds of review relied on before his Honour were not made out.  Not surprisingly, the applicant, as a non‑lawyer, was not able to provide particulars of any of the grounds and was unable to advance submissions to support them before the primary judge.  On the hearing of this appeal, he was likewise unable to submit any ground of appeal based on an error of law in the reasons of the Tribunal or of the primary judge.  Ineffect, the applicant sought to have this Court carry out again the function reserved by the Act to the Tribunal. 

15                  We, therefore, accept the submission of the respondent that, in all the circumstances, the applicant should not be granted leave to file and serve a notice of appeal out of time.  The application for leave will be dismissed with costs. 

Associate:

Dated:              19 March 2002