FEDERAL COURT OF AUSTRALIA

Khalily v Minister for Immigration & Multicultural Affairs [2000] FCA 1818

APPEALS – application for leave to appeal out of time – factors relevant to the exercise of the Court’s discretion

Federal Court Rules O 52 r 15

Jess v Scott (1986) 12 FCR 187 at 195 followed

Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894 followed

Newington v Beneficial Finance Corp Ltd [2000] FCA 338 followed

AMJAD KHALILY v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1166 of 2000

STONE J

30 NOVEMBER 2000

SYDNEY

THE COURT ORDERS THAT:

1.      The application be dismissed.

2.      The applicant pay the respondent’s costs.   

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

REASONS FOR JUDGMENT

1                     The applicant seeks an extension of time in which to file and serve a notice of appeal from the judgment of Lehane J delivered on 6 October 2000.  An extension of time is required because a notice of appeal was not filed and served within the time provided by O 52 r 15(1) of the Federal Court Rules.  Insofar as is relevant, O 52 r 15(1) provides that:

“The notice of appeal shall be filed and served within 21 days after the date when the judgment appealed from was pronounced.”

2                     The applicant did not file his notice of appeal within the specified twenty-one days.  Under O 52 r 2 the Court may “for special reasons” give leave at any time to file and serve a notice of appeal.  The applicant requests that the Court exercise this discretion in his favour. 

3                     The applicant appeared for himself with the assistance of an interpreter both today and in the proceeding before Lehane J on 6 October 2000.  The applicant, who was present in Court on 6 October, filed his application for leave to file and serve a notice of appeal out of time on 1 November 2000, five days after the end of the period specified in O 52 r 15(1)(a).   In Jess v Scott  (1986) 12 FCR 187 at 195 the Full Federal Court stated that the requirement of special reasons is an “elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period.” However, in addition to Jess v Scott (above) the meaning of the term “special reasons” has been considered in two cases referred to by the respondent, Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894 and Newington v Beneficial Finance Corp Ltd [2000] FCA 338.  These cases have identified a number of considerations as relevant to the exercise of the Court’s discretion under O 52 r 15(2). 

4                     The period of delay.  The period of delay in this case was five days which, as the comment from Jess v Scott (above) indicates, is a comparatively short period of delay.  The applicant explains this delay by reference to his not having received the decision, by which he means the written reasons of Lehane J, until 30 October 2000.  The solicitor for the respondent indicated in his affidavit that he received the written decision on 17 or 18 October 2000.  The solicitor’s records suggest that a copy was mailed to the applicant on 20 October 2000.  In addition, the respondent points out that the applicant was present in Court when judgment was pronounced.  There is no explanation of how it might be that the copy took ten days to reach the applicant.  However, the difficulties confronting the applicant in dealing unrepresented while in custody with a legal system which is foreign to him and in a foreign language are formidable.  In the light of those difficulties, I would not regard a five day delay as creating an insuperable obstacle to the exercise of my discretion if other factors would seem to warrant that exercise. 

5                     Possible prejudice to the respondent.  The respondent submits that the continued expense to the Commonwealth of maintaining the applicant in detention as well as the expense and burden of prosecuting the appeal impose a burden which is to the prejudice of the Commonwealth.  As the solicitor for the Commonwealth conceded, at most the additional period of burden to the Commonwealth is the five days delay discussed above plus the time taken to deal with this application.  While I do not dismiss the importance of minimising the drain on the Commonwealths resources, in the scheme of things I do not regard this as imposing an unacceptable burden on the Commonwealth.

6                     Injustice to the applicant  In my opinion, the question of whether I should exercise my discretion in favour of the applicant in this case comes down to the possible injustice to the applicant of not being able to bring his appeal. This requires an estimation of the likelihood of the applicant succeeding in any appeal.  The unfiled notice of appeal signed by the applicant, and allowing for certain difficulties with the English language, states as grounds of appeal that his Honour erred in finding that the Refugee Review Tribunal had provided adequate reasons as required by s 430 of the Migration Act 1958 (Cth) and that it was not open to persuasion in favour of the applicant.  It is not clear whether this is an allegation of bias on the part of Lehane J or on the part of the Tribunal.

7                     In court today, the applicant has not been able to suggest any further grounds of appeal or elaborate on those which are set out in the draft notice.  In his submissions, counsel for the respondent emphasised the unlikelihood of the appeal succeeding.  He referred me to paragraphs in the judgment of Lehane J which indicated that in those proceedings the applicant had sought a merits review.  Lehane J considered the decision of the Tribunal carefully and, as the solicitor for the respondent submitted, took upon himself the task of vetting that decision carefully.  This is not an unusual approach with an unrepresented litigant.  There is nothing in Lehane J’s decision which suggests any disquiet with the way in which the Tribunal went about its task or the conclusions to which it came.

8                     I agree with the respondent’s assessment of the likelihood of an appeal succeeding.  In my opinion, it has virtually no chance of succeeding.  I questioned the applicant about the possibility of his obtaining legal representation to which he had referred at one point in his submissions.  It appears, however, that there is no such arrangement in place and, in the circumstances, I see no reason to qualify my initial assessment of the likelihood of the appeal succeeding.  In my opinion, it is so unlikely to succeed that I see no reason to exercise my discretion in the applicant’s favour.  I must therefore dismiss the application and order that the applicant pay the costs of the respondent.

Associate:

Dated:              12 December 2000