FEDERAL COURT OF AUSTRALIA

NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 184

NADK of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 286 of 2002

TAMBERLIN, SACKVILLE & HELY JJ

SYDNEY

12 JUNE 2002

THE COURT ORDERS THAT:

1.                  The appeal be dismissed as incompetent.

2.                  The application for an extension of time in which to file and serve a notice of appeal be dismissed.

3.                  The applicant pay the respondent’s costs of the appeal and of the application for an extension of time.

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

REASONS FOR JUDGMENT

the court:

1                     The applicant (as we shall call him) filed a notice of appeal in the Registry of the Court on 10 April 2002.  The appeal is said to be from a judgment given by a Judge of this Court on 19 March 2002.  In fact, however, the primary Judge made orders on 13 March 2002, but delivered his written reasons six days later.  His Honour dismissed an application for review of a decision of the Refugee Review Tribunal (“RRT”) made on 6 December 2001, affirming a decision of a delegate of the respondent (“the Minister”) not to grant the applicant a protection visa. 

2                     The appeal was listed for directions at the call-over held on 1 May 2002.  By that time, the Minister had filed a notice of motion, pursuant to Federal Court Rules (“FCR”) O 52 r 18(1), objecting to the competency of the appeal.  The objection to competency was based on the fact that orders were pronounced by the primary Judge on 13 March 2002.  According to the Minister, the notice of appeal had to be filed and served within twenty-one days from that date: FCR, O 52 r 15(1)(a)(i). 

3                     The applicant subsequently filed an application for an extension of time in which to file and serve the notice of appeal.  That application, together with the Minister’s objection to competency, are presently before the Court. 

4                     The background to the matter can be stated briefly.  The applicant is a citizen of India, who arrived in Australia on 1 January 1998 on a student visa.  On 2 May 2000, he lodged an application for a protection visa.  The applicant claimed to be a Sikh, who had lived in Jamoo Kashmir in the Punjab until his departure for Australia in late 1997.  He claimed to fear persecution at the hands of Sikh militants who were seeking to establish an independent State of Khalistan.  In particular, the applicant claimed that two of his uncles had been killed by the militants and that his brother had been abducted in early 1997.  He also said that his family had been recently threatened by the militants.

5                     The Minister’s delegate refused the application for a protection visa on 8 June 2000.  On 3 July 2000, the applicant sought review of that decision in the RRT and subsequently lodged written submissions with the RRT.  The RRT wrote to the applicant on 11 September 2001, informing him that it was unable to make a decision favourable to him on the basis of the written submissions alone.  The RRT invited the applicant to make oral submissions at a hearing that was scheduled to take place on 13 November 2001.  This letter was sent by registered mail to the applicant at the address of his migration agent, the address for service he had nominated in his application to the RRT.  A copy of the letter was also sent to the applicant at his residential address, as specified in the same application.  The applicant confirmed at the hearing before this Court that his residential address had not changed in the meantime.

6                     On 8 October 2001, the applicant’s migration agent wrote to the RRT informing it that the applicant did not wish to make any oral submissions at the scheduled hearing.  Accordingly, the RRT proceeded to make its decision entirely on the papers.  It can be inferred from the terms of the agent’s letter that the agent had received the RRT’s letter of 11 September 2001.

7                     In its reasons, the RRT stated that it was unable to establish the facts in the absence of an opportunity to question the applicant.  The RRT characterised the applicant’s claims as “extremely vague” and pointed out that he had provided no useful information whatsoever about the militants he claimed to fear or how he had attracted their interest.  The RRT rejected the applicant’s claim that his family had recently been threatened by militants.  The RRT considered it implausible that some years after the applicant had left India, and many years after the Punjab had returned to normal, unspecified militants would have resumed an interest in him because he may have opposed them in some way in 1997. 

8                     The RRT accepted independent country information that life in the Punjab had returned to normal some years earlier, after most of the militants had been wiped out.  The Punjab had experienced peace for some eight consecutive years following the comprehensive defeat of the terrorist-secessionist movement for Khalistan in 1993.  Accordingly, the RRT was not satisfied that the applicant had a well-founded fear of persecution for Convention reasons.

9                     The applicant appeared before the primary Judge without legal representation.  The primary Judge stated that the applicant had not identified any legal error in the RRT’s reasons and that his Honour had been unable to discern any such error.  His Honour noted that the applicant’s main complaint was that he had not been notified by his migration agent of the RRT’s invitation to make oral submissions at the hearing scheduled for 13 November 2001.  The primary Judge observed that whether, in fact, the migration agent had not discussed the hearing with the applicant (as the applicant had asserted from the bar table) was not a matter of any legal relevance to the proceedings.  Accordingly, he dismissed the application for review of the RRT’s decision.

10                  After the present motions were set down for hearing, the applicant filed an affidavit in which he set out his submissions in support of the application for an extension of time in which to file and serve a notice of appeal.  The applicant appeared before us, as he did before the primary Judge, unrepresented.  On this occasion, no interpreter was present.  We were satisfied, however, that the applicant could understand English and could speak it fluently.

11                  We accept the submission made on behalf of the Minister that the appeal is incompetent.  The effect of FCR, O 52 r 15(1)(a)(i) is that the notice of appeal should have been filed and served within twenty-one days after “the date when the judgment appealed from was pronounced”.  Since the orders were pronounced on 13 March 2002, the appeal was out of time, notwithstanding that the written reasons were not delivered until six days later.

12                  We would accept that the applicant has a reasonable excuse for not filing the notice of appeal within time.  In our view, however, it is not appropriate to grant an extension of time unless there is at least some arguable basis for a contention that the primary Judge had erred in dismissing the application for review of the RRT’s decision.  Otherwise the grant of an extension of time in which to file and serve a notice of appeal would simply be futile.

13                  The applicant’s notice of appeal does not identify any error of law made by the primary Judge.  Nor does his affidavit.  The applicant has, however, repeated his claim that the migration agent did not notify him of the hearing that was to take place before the RRT on 13 November 2001.

14                  It seems somewhat curious that the applicant was not told by the migration agent of the impending hearing before the RRT, given that the agent notified the RRT in writing that the applicant did not wish to take advantage of its invitation to appear at the hearing.  Nonetheless, we are prepared to assume for the purposes of the application for an extension of time that the applicant’s claim that he was not told of the hearing date is correct.

15                  The RRT’s invitation to the applicant was served in accordance with the requirements of ss 425A and 441A(4) of the Migration Act 1958 (Cth).  These provisions, as inserted by Migration Legislation Amendment (Electronic Transactions and Methods Notification) Act 2001 (Cth), in force from 10 August 2001, are as follows:

“425A (1)        If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear.

(2)         The notice must be given to the applicant:

(a)        except where paragraph (b) applies – by one of the methods specified in section 441A; or

(b)        if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(3)        The period of notice given must be at least the prescribed period or, if no period is prescribed, a reasonable period.

(4)        The notice must contain a statement of the effect of section 426A.

441A  (1)         For the purposes of provisions of this Part or the regulations that:

(a)        require or permit the Tribunal to give a document to a person (the recipient); and

(b)        state that the Tribunal must do so by one of the methods specified in this section;

the methods are as follows.

            …

 (4)       Another method consists of a member, the Registrar or an officer of the Tribunal, dating the document, and then dispatching it:

(a)        within 3 working days (in the place of dispatch) of the date of the document; and

(b)        by prepaid post or by other prepaid means; and

(c)        to:

(i)         the last address for service provided to the Tribunal by the recipient in connection with the review; or

(ii)        the last residential or business address provided to the Tribunal by the recipient in connection with the review.”

(Sections 425A and 441A contained equivalent provisions prior to 10 August 2001.)

16                  The RRT’s invitation was sent by prepaid post to the applicant at the address for service nominated by him and a copy was sent by the same means to his residential address.  The RRT therefore complied with both s 441A(c)(i) and (ii), notwithstanding (as we are prepared to assume) the applicant was not himself told of the hearing and did not receive the letter sent to his home address.  Accordingly, there is no basis for concluding that the primary Judge was in error in holding that the asserted fact that the applicant was unaware of the RRT’s hearing was of no legal relevance.  As we have noted, the applicant has not identified any other basis for contending that the primary Judge erred in law in concluding that the application for judicial review should be dismissed.

17                  In these circumstances, the grant of an extension of time in which to file and serve a notice of appeal would serve no purpose.  The orders we make are as follows:

1.      The appeal be dismissed as incompetent.

2.      The application for an extension of time in which to file and serve a notice of appeal be dismissed.

3.      The applicant pay the Minister’s costs of the appeal and of the application for an extension of time.

Associate:

Dated:              17 June 2002

The applicant was self-represented.