FEDERAL COURT OF AUSTRALIA

Jafari v Minister for Immigration & Multicultural Affairs [2000] FCA 847

ALI ARSHAD JAFARI v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 574 OF 2000

HELY J

19 JUNE 2000

SYDNEY

THE COURT ORDERS THAT:

1.                  The matter be adjourned until 10:15am on 31 July 2000, to enable the applicant to seek legal representation.

2.                  The applicant file and serve an Amended Notice of Appeal setting out the grounds upon which he proposes to rely by 4:00pm on 27 June 2000.

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

REASONS FOR JUDGMENT

1                     On 20 December 1999 the Refugee Review Tribunal gave a decision affirming the decision of the Minister's delegate not to grant a protection visa.  The applicant appealed against that decision.  The appeal was heard on 24 March 2000 and neither the form of the application nor the written submissions on behalf of the applicant outlined any ground of appeal available under s 476 of the Migration Act 1958 (Cth).  For those reasons it was not surprising that the primary judge dismissed the application for review.  The time for appealing against that decision expired on 14 April and no appeal was lodged within that time, however, on 31 May 2000 an application for an extension of time within which to appeal was made.

2                     A draft Notice of Appeal was lodged with that application.  The ground of appeal identified in that draft was that his Honour erred in finding that the applicant's fear of persecution as a politician was not on account of a Refugee Convention reason.

3                     This ground does not demonstrate any error on the part of the primary judge.  Jurisdiction exists under Order 52, rule 15(2) to grant an extension of time for special reasons shown.  However, it seems to me that a minimum requirement for special reasons is the demonstration of some seriously arguable point having prospects of success.  No such point has so far been exposed.  As matters currently stand I would not be prepared to grant an extension of time for lodging an appeal.  The applicant, however, seeks an adjournment for a period of one month in order to obtain legal advice.  He made that application on 8 June 2000 when the matter was last before me and he repeated it again this morning.  This morning he told me that he had been in touch with the NSW Bar Association who were at least willing to consider his case but that they needed more time to do so.

4                     I am effectively confronted with a choice of refusing an extension of time within which to appeal (which will have a very final effect so far as the present applicant is concerned), or deferring the matter for a period of one month against the possibility that (a) Mr Jafari might be able to secure legal representation in that time, and (b) that that legal representation may be able to demonstrate error in the decision of Emmett J.  On a reading of the decision, no such an error is apparent to me.  However, the problem remains that a party is probably in greater need of legal representation when the fact of legal error is not readily apparent, than in the case where it is.

5                     Mr Jafari did not have legal representation before Emmett J and he has not had it before me.  In those circumstances, whilst I appreciate the full force of all the submissions made by Mr Markus for the Australian Government Solicitor, I do think that on balance Mr Jafari should have a further opportunity of attempting to obtain that representation before his application for a protection visa is effectively and finally concluded against him.

6                     Hence, I propose to adjourn the matter until 31 July 2000 at 10:15 am, upon the basis that I am affording the applicant a last chance within which to obtain legal representation and to demonstrate that there is some arguable point to be made on his appeal.  Unless he is able to establish those matters, it is practically inevitable that when the matter comes back before me on that day, the application for an extension of time would be dismissed.  In addition, I direct that by 4:00 pm on 27 June 2000 the applicant is to file and serve an Amended Notice of Appeal setting out with particularity the grounds of appeal upon which he proposes to rely.

7                     I have requested that Mr Interpreter explain the content of these orders to Mr Jafari.  I am satisfied that he is aware that this is his last chance, and that he must expect that unless he can demonstrate on the 31^st of next month that he has an arguable case, his application for an extension of time within which to appeal will be dismissed.  I have stretched the matter perhaps too far in his favour and I cannot stretch it any more.

Associate:

Dated:              22 June 2000