FEDERAL COURT OF AUSTRALIA

Potier v Minister for Immigration & Multicultural Affairs [2001] FCA 217

APPEALS – application for an extension of time within which to file and serve a notice of appeal – whether appeal has any prospect of success

IMMIGRATION – whether being a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention is a mandatory criterion for the grant of a protection visa

Migration Act 1958 (Cth) s 36

Federal Court Rules O 52 r 15(2)

Jones v The Queen (Gallop, Neaves & Beaumont JJ, 17 August 1984, unreported) followed

MALCOLM HUNTLEY POTIER v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1357 of 2000

STONE J

27 FEBRUARY 2001

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                     I have before me an application for an extension of time within which to file and serve a notice of appeal from the judgment of Wilcox J pronounced on 3 November 2000 at Sydney.  The application was filed on 28 November 2000.  Under O 52 r 15(1)(a) of the Federal Court Rules, a notice of appeal is generally to be filed and served within 21 days after the date on which the judgment appealed from is pronounced. Accordingly, the applicant's notice was out of time by some days.  However, O 52 r 15(2) provides that the Court has discretion to give leave to appeal out of time “for special reasons”.  The applicant seeks an exercise of this discretion in his favour. 

background

2                     The applicant is a citizen of the United Kingdom.  He lived for some time in a de facto relationship with Myra Oswald and together they had a daughter, Sarah, who was born in April 1997. Mr Potier came to Australia about 15 or 16 months ago, bringing Sarah with him.  Subsequently, Ms Oswald came to Australia and made a successful application to the Family Court of Australia for a custody order pursuant to the Hague Convention on the Abduction of Children.  Mr Potier made an application (which included Sarah) for a protection visa and that application was refused.  The Refugee Review Tribunal (“Tribunal”) confirmed this refusal and Mr Potier appealed to this Court.  The appeal was heard and dismissed by Wilcox J.  In that matter, Mr Potier was the only applicant and therefore, although the application before me today lists both Mr Potier and Sarah as applicants, Mr Potier is the only applicant in this proceeding.

3                     The difficulty which Mr Potier faced in his application for a protection visa is that, by his own admission, he did not meet the criteria for the grant of such a visa set out in the Migration Act 1958 (Cth) (“the Act”).  Section 36(2) of the Act provides that a criterion for a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as “amended” by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”). Article 1A of the Convention provides that a refugee is any person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

4                     Under s 65 of the Act, if the Minister is satisfied that an application for a visa does not meet the criteria prescribed by the Act, he must refuse it.  Mr Potier, both before the Tribunal and again before Wilcox J, specifically disclaimed having any well founded fear of persecution if returned to the United Kingdom.  On that basis, the Tribunal had no choice but to decide that Mr Potier was not entitled to a protection visa.  On appeal before Wilcox J, Mr Potier argued that the use of the indefinite article “a” at the commencement of s 36(2) indicated that it was only one of a number of criteria and that there would be other criteria applicable to him. Neither before Wilcox J nor at the hearing today has Mr Potier been able to point to the criterion that would be applicable to him.  Wilcox J rejected Mr Potier's analysis.  His Honour referred to the additional criteria in s 65 of the Act and concluded that

“This, no doubt, explains why the indefinite article “a” is used in s 36(2).  It was not the intention of the Parliament to say that there could be only one criterion for a protection visa.  There are multiple criteria, but that does not derogate from the proposition that the criterion in s 36(2) is an obligatory criterion to be established by an applicant for a protection visa.”

5                     Wilcox J saw no error of law in the Tribunal’s decision and no ground that would attract the jurisdiction of this Court under s 476 of the Act.  His Honour further commented that,

“Even if there was a technical ground of review, it would be futile to remit the matter to the Tribunal.  On the applicant’s own case, he cannot bring himself within the definition of ‘refugee’ in the Convention.  The application for review must be dismissed.”

leave to appeal

6                     It is well established that the following two considerations are relevant to the decision of this Court to give leave to file out of time.  First, the applicant must have provided an adequate explanation for the delay and, secondly, the applicant must have demonstrated that the appeal has sufficient prospect of success for it to be just that the appeal proceed; Jones v The Queen (Gallop, Neaves & Beaumont JJ, 17 August 1984, unreported).

7                     Sensibly, the respondent has not sought to argue that a delay of only a few days is unjustified or fatal to the applicant's claim.  The respondent opposes this application solely on the second of the two grounds mentioned above, that is the question of whether there is a sufficient prospect of success for the appeal to proceed.  The respondent submits that the proposed appeal from the judgment of Wilcox J does not have sufficient prospects of success to warrant the Court exercising the discretionary power available to it under O 52 r 15(2) in the applicant's favour.

8                     Once the applicant had disclaimed any fear of persecution, his application for a protection visa had to fail.  Wilcox J accepted, and I accept today, that that criterion, though one of a number, is mandatory and that a failure to meet it is fatal to any application for a protection visa.  No arguments were put to Wilcox J that suggested otherwise.  Wilcox J rejected the applicant’s ingenious interpretation of s 36 and, in my view, he was correct in doing so.  I agree with Mr Potier that the fact that an interpretation is ingenious is not fatal to it. However ingenuity alone is not sufficient. It must be supported by legal analysis if the argument is to succeed.

9                     In my opinion no purpose could be served by extending the time within which to apply for appeal or by putting the matter before a Full Court. At the hearing today, I allowed Mr Potier considerable latitude in putting his case.  However, there was nothing in his argument that revealed to me any prospect of success on appeal to a Full Court.  I recognise that the applicant is genuinely distressed by the situation in which he finds himself and genuinely believes that the legal system has let him down.  However, the applicant must realise that the jurisdiction of this Court to address his concerns is limited. 

10                  The application must be dismissed with costs.

Associate:

Dated:              12 March 2001