FEDERAL COURT OF AUSTRALIA

W105/99A v Minister for Immigration & Multicultural Affairs [2001] FCA 1786

PROCEDURE – migration – decision of primary judge affirming tribunal refusal of application for a protection visa -–whether extension of time should be granted to file and serve notice of appeal – whether special reason – whether letter from applicant to court advising intention to appeal a special reason – whether applicant has made out any real prospect of succeeding on the appeal if extension granted

Migration Act 1958 (Cth) s 476

Federal Court Rules O 52 r 15, O 52 r 15(1)(a)(i),

Jess v Scott (1986) 12 FCR 187 cited

Atkinson v Commissioner of Taxation [2000] FCR 1621 cited

Tydeman v Deputy Registrar of Child Support Agency [1999] FCA 936 cited

Brehoi v Minister for Immigration & Multicultural Affairs [1999] FCA 772 cited

Howard v Australian Electoral Commission [2000] FCA 1767 cited

Kalaba v The Queen (1996) No. ACT G14 of 1996, (Finn J, 13 September 1996, unreported) cited

W105/99A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W105 of 1999

RD NICHOLSON J

13 DECEMBER 2001

PERTH

THE COURT ORDERS THAT:

1.                  The application for extension of time to file and serve a notice of appeal be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     The applicant, an unrepresented litigant, brings an application for extension of time to file and serve a notice of appeal.  He is a citizen of Algeria who arrived by boat in Australia on 18 February 1999.  He seeks thereby to appeal against the decision delivered on 20 December 1999 in which French J dismissed an application by him (“the review application”) to review the decision of a Refugee Review Tribunal (“the Tribunal”) which affirmed a decision of the delegate of the respondent to refuse to grant a protection visa to the applicant.  Unless the order sought by the applicant is made, he will not be able to appeal from that decision.  That is because of the 21 day time limit within which the notice of appeal was required to be filed in accordance with O 52 r 15(1)(a)(i) of the Federal Court Rules.

2                     This application is brought in reliance upon O 52 r 15 of the Federal Court Rules which reads:

“15(1)The notice of appeal shall be filed and served-

(a)   within 21 days after-

(i)                 the date when the judgment appealed from was pronounced;

(ii)               the date when leave to appeal was granted; or

(iii)             any later date fixed for that purpose by the court appealed from; or

(b)   within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

 15(2)  Notwithstanding anything in the preceding sub-rule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.”

It is on r 15(2) which the applicant’s case particularly relies upon. 

3                     The expression “for special reasons” had been explained as requiring the establishment of grounds sufficient in the particular circumstances to justify departure from the time period for an appeal prescribed by O 52 r 15(1)(a):  see Jess v Scott (1986) 12 FCR 187 at 195 per Lockhart, Sheppard and Burchett JJ.  Their Honours said:

“… 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.”

Their Honours also pointed out that the power contained in O 52 r 15(2) is a discretionary one.

4                     The circumstances of the applicant’s case are as follows.

5                     The review application sought an order for review pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).  At the hearing of the review application, the applicant was represented by counsel who had put the applicant’s instructions into a coherent form in the written submissions which counsel provided to the Court.  After considering those submissions and the Tribunal’s reasons for decision French J concluded that “there is no relevant error of law or procedure which is disclosed” and his Honour dismissed the review application.

6                     The applicant subsequently wrote to the Federal Court by letter dated 6 January 2000 in which he stated, inter alia, that he wanted to appeal his case to the “high federal court”, and that on the date upon which he had received the Court’s decision, 20 December 1999, he had also received an important document in relation to his case.  The applicant did not proceed to lodge any notice of appeal from French J’s decision within the 21 day period specified by O 52 r 15(1)(a) of the Federal Court Rules.

7                     Between 7 January 2000 and 18 June 2001 the applicant and his legal representatives, the SCALES Community Legal Centre, made several written requests to the Minister or to the Department, requesting that the Minister exercise his discretion under s 417 and/or s 48B of the Act.  The Minister did not exercise his discretion in the applicant’s favour under either of these provisions of the Act.

8                     On 3 September 2001 the applicant lodged the application for an extension of time to file and serve notice of appeal with the Perth Registry of the Federal Court (“the extension application”).  At par 2 of the extension application the applicant stated:

“because in that time [the time specified by Order 52 Rule 15] I haven’t lawyer for write to federal court for appeal within 28 days.”

At par 5 of the extension application concerning the grounds of the application the applicant stated:

“about the facsimile which was sent to the federal court but I observe since sent it to immigration minister (any first case officer)”.

9                     In oral submissions in support of the present application the applicant maintained that a “mistake” was involved in that his papers were sent to the Minister rather than a notice of appeal filed in the Court.  Evidence adduced on the application makes it clear that there is no ground for finding that a notice of appeal was faxed by officers of the Department of Immigration and Multicultural Affairs to the Minister rather than to the Court. 

10                  It remains the case, however, that by his letter of 6 January 2000 the applicant advised the Federal Court, which received his letter, that he wanted to appeal against the refusal of his application.  It is this which he says should be treated as his notice of appeal.  He further states that a “mistake” was made because he should have been sent some forms to complete and lodge if his notification by way of letter was not adequate.

11                  In my opinion the fact that the applicant wrote in the abovementioned terms to the Federal Court on 6 January 2000 is a “special reason” to be considered in his favour on the present for extension of time to lodge a notice of appeal.  That letter is to be considered in the circumstances of the applicant’s detention, his inability to readily access normal sources of information available outside detention and his linguistic limitations in the language of the Court.

12                  I do not consider the fact that the applicant and his legal representatives, SCALES Community Legal Centre, proceeded to seek the exercise by the respondent of his discretion under ss 417 and 48B of the Act does not preclude the consideration of the applicant’s letter of 6 January 2000 as a special reason in his favour.  It is clear from the terms of his letter of 6 January 2000 that he notified the Court of his intention to appeal.  I am unable to conclude (as submitted for the respondent) that this is a case in which the applicant pursued the other possible avenues of redress rather than instituting the appeal and then sought to rely on the institution of the appeal when the other avenues were not successful.

13                 However, if it is the case that the applicant would have no real prospect of succeeding in his appeal in any event, an exercise of the discretion adverse to the extension of time would be appropriate:  Atkinson v Commissioner of Taxation [2000] FCR 1621; Tydeman v Deputy Registrar of Child Support Agency [1999] FCA 936; Brehoi v Minister for Immigration & Multicultural Affairs [1999] FCA 772; and Howard v Australian Electoral Commission [2000] FCA 1767.  That is, in deciding whether or not to exercise the discretion, the Court is required to consider whether an applicant has demonstrated that his or her appeal may have sufficient prospect of success to make it just that he or she should now be allowed to proceed with it:  see Kalaba v The Queen (1996) No. ACT G14 of 1996, (Finn J, 13 September 1996, unreported) at [12] and Howard at [7].

14                 In his reasons French J said that counsel for the applicant before him had made it plain to the Court that he was unable to discern any error of law or procedure of the kind referred to in s 476 in the reasons of the Tribunal.  Having read the submissions provided by that counsel, French J concluded that the contentions of the applicant went entirely to the merits of the Tribunal’s decision and thus lay beyond the jurisdiction of this Court.  Accordingly, French J found there was no relevant error of law or procedure. 

15                 The applicant has not sought to add to that position by suggesting any error of law or procedure.  None is apparent.  Furthermore, the applicant’s statement in his letter of 6 January 2000 to receipt of a new document supports an inference that he seeks the appeal to reargue the merits which lie beyond the jurisdiction of this Court on an appeal.

16                 It follows that the discretion to grant the extension of time to lodge a notice of appeal must be exercised adversely to the applicant.  This is so even taking his letter of 6 January 2000 at its highest as a special reason in his favour. 

17                 For these reasons I consider that the application for extension of time to file and serve a notice of appeal should be dismissed. 

Associate:

Dated:              13 December 2001