FEDERAL COURT OF AUSTRALIA

Abbas v Minister for Immigration & Multicultural Affairs [2001] FCA 1867

Federal Court of Australia Act 1976 (Cth) s 25(2)(b)

Migration Act 1958 (Cth) s 476

Federal Court Rules O 52(1)(a)(i), O 52 r 15, O 52 r 15(2)

Atkinson v Commissioner of Taxation [2000] FCA 998, cited

Atkinson v Commissioner of Taxation [2000] FCA 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

GHULAM ABBAS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W339 of 2001

RD NICHOLSON J

11 DECEMBER 2001

PERTH

THE COURT ORDERS THAT:

1.                  The application 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                     On 15 November 2001 the applicant filed an application for an extension of time to file and serve a notice of appeal as provided for in O 52 r 15 of the Federal Court Rules.  The decision to which the application relates was given by a judge of this Court on 15 October 2001.  Unless such an order is made the applicant may not appeal from that decision.  The time within which he might have done so expired on 6 November 2001, see O 52(1)(a)(i) of the Federal Court Rules.  Under O 52 r 15(2) the Court or a judge may at any time for "special reasons" give leave to file and serve a notice of appeal.  The court as presently constituted may entertain such an application.  See s 25(2)(b) of the Federal Court of Australia Act 1976 (Cth).

2                     The decision in respect of which the application is made was one which dismissed the applicant's application seeking judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), which was given on 25 July 2001.  The Tribunal affirmed a decision not to grant to the applicant a protection visa.  The applicant had applied for that visa on 3 January 2001.  He had arrived in Australia on 17 December 2000, and claimed to be a citizen of Afghanistan.  His application was brought under the Migration Act 1958 (Cth). 

3                     The reasoning of the Tribunal was as follows:  it found that based on the possession and existence of a particular passport, that the applicant was born in Pakistan and was a national of Pakistan.  As a consequence it found that he had fabricated his account in relation to Afghanistan.  The Tribunal found that based on the similarity between the applicant's appearance and the photograph in the passport in issue, that the photograph was of the applicant.  In so finding, the Tribunal rejected the applicant's claim that the passport must be a false one provided by the smuggler who enabled him to travel to Australia.  The reasons of the Tribunal record that the photograph and document in issue was put to him and he made statements in relation to it during the course of interviews leading to the Tribunal hearing.  The essence of the applicant's case was that as an Afghan he had developed a well-founded fear of persecution as a consequence of action by the Taliban in his village in Afghanistan.

4                     When the matter came before the primary judge, he pointed out that the Tribunal had disbelieved the applicant based on evidence which was before it.  He found there was no indication that the Tribunal had made any mistake of law or procedure in the way it dealt with the matters before it.  He therefore dismissed the application for review of the Tribunal reasons.  The circumstances relied on by the applicant in his application, being circumstances going to his own ability to comprehend a time limit, are factors which weigh in favour of finding special reasons to extend the time to appeal.  However, they must be considered in the totality of circumstances which includes whether there are any issues likely to be arguable on the appeal

5                     The issues which the applicant seeks to argue are impermissible because the appellate court could not remake the findings of fact previously made by the Tribunal and there is no absence of any evidence to sustain them, so that is not the position here.  The position, therefore, is that the applicant would have no real prospect of succeeding in his appeal in any event.  That is a very significant circumstance which outweighs the other circumstances to which I have referred.  It requires that the discretion raised by the applicant's application should be exercised adversely to the application:  Atkinson v Commissioner of Taxation [2000] FCA 998; and on appeal:  Atkinson v Commissioner of Taxation [2000] FCA 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.

6                     For these reasons I consider that the application for an extension of time to file the notice of appeal should be refused.

Associate:

Dated:              20 December 2001