FEDERAL COURT OF AUSTRALIA

Eloujenko v Minister for Immigration & Multicultural Affairs [2001] FCA 1791

PRACTICE & PROCEDURE – Application for extension of time in which to file a notice of appeal – Delay short and explainable – Whether proposed grounds of appeal disclosed an arguable case

Federal Court Rules O 52 rr 15(1) & 15(2)

Jess v Scott (1986) 12 FCR 187 referred to

Wolcott v Davis (1984) 4 FCR 124 referred to

Minister for Immigration and Multicultural Affairs v Kabail  [1998] FCA 1320 referred to

Low v Commonwealth of Australia [2001] FCA 702 referred to

Howard v Australian Electoral Commission [2000] FCA 1767 referred to

Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 referred to

GUEORGUI ELOUJENKO v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1223 of 2001

O’LOUGHLIN, WHITLAM & MARSHALL JJ

14 DECEMBER 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to appeal out of time is refused.

2.                  The applicant pay the respondent’s costs, including reserved costs, to be taxed in default of agreement.

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

REASONS FOR JUDGMENT

THE COURT:

1                     On 29 November 2001 Mr Eloujenko sought an extension of time within which to file and serve a notice of appeal.  At the conclusion of the hearing the Court ordered that an extension of time be refused and that Mr Eloujenko pay the respondent’s costs, to be taxed in default of agreement.  These are our reasons for making those orders.

2                     The application related to a judgment given on 27 July 2001 dismissing with costs an application by Mr Eloujenko for review of a decision of the Refugee Review Tribunal (“the RRT”).  The relevant RRT decision affirmed a decision of a delegate of the respondent not to grant Mr Eloujenko a protection visa.

3                     Pursuant to O 52 r 15(1)(a) of the Federal Court Rules (“the Rules”), Mr Eloujenko was required to file any notice of appeal within 21 days after 27 July 2001.  The present application was filed four days after that period on 21 August 2001.  In his supporting affidavit, Mr Eloujenko said that he was unable to file a notice of appeal because, when it was due, he was “in bed with influenza (fever, high temperature and dizziness)”.  His affidavit referred to an enclosed doctor’s certificate, but no such document was annexed to his affidavit.  At the hearing before us two medical certificates were received in evidence.  They confirmed Mr Eloujenko’s unfitness “for court” for the periods 15-21 August and 5-10 November 2001.

4                     Order 52, rule 15(2) of the Rules provides:

“… the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.”

5                     In Jess v Scott (1986) 12 FCR 187 a Full Court of the Court considered the meaning of “special reasons” under that subrule.  The Full Court made the following observations (at 195):

“It should not be overlooked that r 15(2) enables leave to be given ‘at any time’, the ‘special reasons’ relevant to such a power cannot but describe 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. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late.  ‘Special reasons’ must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.”

6                     In light of the Full Court’s comments about the flexible nature of the “special reasons” test, it cannot be doubted that in an appropriate case sickness may constitute a “special reason”: see also Wolcott v Davis (1984) 4 FCR 124 at 128 per Muirhead J and Minister for Immigration and Multicultural Affairs v Roda Kabail & Ors [1998] FCA 1320 at [15] per Tamberlin J.  However, even if Mr Eloujenko can establish such a reason for not filing his appeal in time, the Court still has a discretion to refuse an extension of time when it is clear that the proposed grounds of appeal do not disclose an arguable case. See Low v Commonwealth of Australia [2001] FCA 702 at [13] per Marshall J and Howard v Australian Electoral Commission [2000] FCA 1767 at [7] per Branson J.

7                     Mr Eloujenko’s proposed notice of appeal replicates the grounds of review initially submitted in the proceeding before the primary judge. The grounds specified are:

“Procedures that were required by the Act to be observed in connection with the making of the decision were not observed (s476(1)(a)).

The decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal, or both (s476(1)(c)).

There was no evidence or other material to justify the making of the decision.”

8                     These grounds were not particularised.  However, shortly before the hearing of the present application, Mr Eloujenko filed the written submissions used in the court below.  Those submissions quarrel with the merits of the decision of the RRT and seek to compare that decision with decisions of the RRT in other matters before it.  The submissions do not identify any error of law made by the RRT or the primary judge.  As Kirby J said in Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293 at [49] “[o]nly an error of law permits the intervention of the courts” in an application to review decisions of the RRT.

9                     In his oral submissions Mr Eloujenko contended that the RRT was biased against him. This contention was not elaborated beyond mere assertion and such a ground was not raised in the proposed notice of appeal.  It appears that his real complaint is other Russian nationals who are Jehovah’s Witnesses have had their applications for protection visas determined favourably by the RRT.   The primary judge dealt with this argument and said at [22]-[23]:

“Apparent inconsistencies between the decision in this case and decisions of differently constituted tribunals may be explicable upon the basis that the facts in each case were different, or upon the basis that different members took a different view of the facts.

…

In the present case [the RRT member] did not refer to her own earlier decisions on applicants by Russian Jehovah’s Witnesses, or to decisions of other RRT members on such applications. But there is no particular reason why she should do so, bearing in mind that the issue for her determination was whether RRT was satisfied on the materials before it that this applicant has a well-founded fear of persecution if returned to Russia. There is no error of law, or jurisdictional error in failing to refer to these other decisions: Vassilieva v Minister for Immigration & Multicultural Affairs [2001] FCA 733; Soboleva v Minister for Immigration & Multicultural Affairs [2001] FCA 528. Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379does not require RRT to enquire whether there ever was a time when Jehovah’s Witnesses were persecuted in Russia, and if so, to establish when and how circumstances changed. What is required is RRT’s assessment of the position at the present time.”

With respect, we agree with his Honour that no arguable contention is made out that the RRT’s decision was affected by actual bias by its alleged failure to be consistent with the RRT decisions concerning applicants in other matters who were also Russian Jehovah’s Witnesses.

10                  In oral submissions, Mr Eloujenko contended that the RRT erred in holding that he would not be persecuted for reasons of his religion in relation to refusal of miliary service.  This contention does not disclose an arguable ground.  The RRT found that it was not satisfied that:

“the Applicant would be treated other than in accordance with the relevant law of general application in relation to military service (or retraining) or the evasion thereof, if he formally refuses military training as a conscientious objector, due to his Jehovah’s Witnesses faith”.

This conclusion was open to the RRT on the material before it.   No error of law is revealed in such a finding.

11                  As previously observed, where prima facie the proposed grounds of appeal do not disclose an arguable case, there is no useful purpose in granting leave to appeal out of time, even if, as in this matter, the relevant delay is short and explained.  Nothing Mr Eloujenko has said indicated any arguable prospects for success in an appeal.   In any event, we carefully considered the primary judge’s reasoning and detected no error in it.

Associate:

Dated:              13 December 2001