FEDERAL COURT OF AUSTRALIA

Tuitavake v Minister for Immigration & Multicultural Affairs [1999] FCA 590

No question of principle

Federal Court Rules O 52 rr 15 and 15A

Migration Regulations Sch 3 Item 3002

Human Rights and Equal Opportunity Commission Act 1986 s 47(1)

Jess v Scott (1986) 12 FCR 187 applied

R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 referred to

Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 referred to

MELE OFA TUITAVAKE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 718 OF 1999

HELY J

14 SEPTEMBER 1999

SYDNEY

THE COURT ORDERS THAT:

1.         The application is dismissed with costs.

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

REASONS FOR JUDGMENT

1                     On 29 June 1999 Madgwick J dismissed the applicant’s claim that the Immigration Review Tribunal had erred in affirming the decision of a delegate of the respondent to reject the applicant’s request for a “special need relative” visa.  The time for appeal from that decision expired on 20 July 1999.  The applicant now seeks leave to file and serve a notice of appeal out of time pursuant to O 52 r 15(2) of the Federal Court Rules.  On 26 July 1999 the applicant filed (and presumably served) an application for the extension of time sought, an affidavit in support and a draft notice of appeal.  The applicant has also filed a written submission, having elected to present her arguments to the Court in writing: O 52 r 15(3).  This election was not opposed by the respondent, who has also filed a written submission: O 52 r 15A(3).  That is the extent of the material before me.

2                     Time for the filing and service of a notice of appeal without leave of the Court is 21 days: O 52 r 15(1).  Leave to extend this time may only be granted if the applicant shows “special reasons”: O 52 r 15(2).  In Jess v Scott (1986) 12 FCR 187 at 195 the Full Court held:

“What is needed to justify an extension of time is indicated in r 15(2) by the words ‘for special reasons’.  It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days.  In that context, the expression ‘special reasons’ is intended to distinguish the case from the usual course according to which the time is twenty-one days.  But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case.  Such a ground is a special reason because it takes the case out of the ordinary.  We do not think the use of the expression ‘for special reasons’ implies something narrower than this.”

3                     The nature of the applicant’s case, the questions involved and the reason why leave should be given are to be set out in the affidavit filed in support of the application to extend time: O 52 r 15(6).  When an application is to be determined on the papers, the applicant’s written submission shall, amongst other things, state the circumstances out of which the application arises, the contentions to be urged by him or her and the reasons relied upon: O 52 r 15A(4).

4                     None of the documents filed by the applicant expressly sets out the reason or reasons why an extension of time to file a notice of appeal should be granted.  No explanation for the failure to lodge a notice of appeal within time is proffered.  Instead, the documents set out, somewhat repetitively, the grounds of appeal relied upon.  Prima facie, no “special reasons” for discretionary relief exist and the applicant has failed to comply with O 52 r 15(6) and O 52 r 15A(4).  However, the strength of the grounds of appeal may of themselves constitute a special reason for extending the time within which to file a notice of appeal: R v Secretary of State for the Home Department; Ex parte Mehta [1975] 1 WLR 1087 at 1091.  For this reason, and in view of the fact that the applicant is unrepresented, I have examined the grounds of review identified to ascertain whether they provide a special reason for an extension of time to be granted.

5                     The applicant contends that Madgwick J erred in holding that the regulations with which this case is concerned, in particular Item 3002 in Schedule 3 to the Migration Regulations, are to be construed according to their terms and independently of the common law as stated in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.  In order for this argument to succeed, the applicant must make good the proposition that developments in the common law modify statutory enactments.  Clearly this ground of appeal is destined to fail.  It cannot provide a special reason for an extension of time for a notice of appeal to be filed and served.

6                     The applicant also submits that Item 3002 in Schedule 3 to the Migration Regulations is unconstitutional.  Two reasons are proposed.  First, that the amendment of Item 3002 in 1995 “was a positive step taken by the Government to hurt and victimise Australian citizen children” and is, therefore, “constitutionally wrong after the law was established by the High Court in Teoh’s case.”  Secondly, that Item 3002 has retrospective operation and is, consequently, invalid.  There is no substance in either of these contentions.  The first is untenable because it asserts unconstitutionality by reason of a supposed lack of observance of the common law.  The second makes no sense because Item 3002 does not have retrospective operation.  Again, no special reason is disclosed.

7                     In addition, the applicant argues that Item 3002 is invalidated by reason of Article 3 of the United Nations Convention on the Rights of the Child.  This is said to follow from the fact that on 22 December 1992 the Attorney-General of the Commonwealth declared the Convention to be an international instrument pursuant to s 47(1) of the Human Rights and Equal Opportunity Commission Act 1986.  That declaration did not result in the Convention becoming part of Australian municipal law: see Teoh at 287.  Inconsistency between a statutory regulation and an international convention does not invalidate a statutory regulation.  In any event, there is no inconsistency in the present case because the provisions of the regulation and Article 3 of the Convention are unrelated – they deal with different subject matter.  Thus, no special reason for extending time is revealed on this count.

8                     Finally, the applicant makes a submission about what is referred to as “a backdoor scheme”.  According to the applicant, this scheme enabled people other than the applicant to obtain visas.  The applicant contends that these visas were granted “contrary to regulation and s65(1) of the Migration Act.”  Associated with this submission is an allegation that the respondent was involved in “a cover up and a positive attempt to conceal the truth.”  This final submission is unclear.  In any event, the circumstances in which persons other than the applicant came to obtain visas cannot assist the applicant.

9                     Whilst an application for an extension of time to file and serve a notice of appeal does not provide the occasion for determination of the grounds of appeal, it has been necessary in this case to examine the grounds of appeal because only they could provide “special reasons” for an extension of time.  They do not.  This is not a case in which there is some prospect of appellate success.  If it were otherwise, I would be inclined to grant an extension of time in view of the fact that the appellant is but six days out of time.  However, an appeal on the stated grounds would be futile and I decline to extend time for a notice of appeal to be filed and served.

10                  The application is dismissed with costs.

Associate:

Dated:              14 September 1999