FEDERAL COURT OF AUSTRALIA

Shorafa v Minister for Immigration & Multicultural Affairs [2002] FCA 191

Migration Act 1958 (Cth) ss 14, 36(2), 189

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

Jess v Scott (1986) 12 FCR 187 referred to

Kalaba v R [1996] (Finn J, 13 September 1996, unreported) referred to

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

W105/99A v Minister for Immigration & Multicultural Affairs (R.D. Nicholson J, 13 December 2001, unreported) referred to

MOJAHED SHORAFA v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W142 of 2001

RD NICHOLSON J

4 FEBRUARY 2002

PERTH

THE COURT ORDERS THAT:

1.                  The application for leave to file and serve a notice of appeal is 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 is an unrepresented litigant.  He brings an application for leave to file and serve a notice of appeal.  He proposes that the notice would relate to the judgment and reasons of Lee J delivered on 10 September 2001.  In those reasons Lee J dismissed an application by the applicant to review the decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the respondent to the effect that a protection visa not be granted to the applicant.  Unless the order sought by the applicant is made, he will not be able to appeal from the 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                     The application is brought in reliance on that rule 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.”

3                     It is on O 52 r 15(2) which the applicant's case particularly relies.  That requires the Court to consider and find whether there are special reasons for giving leave to the applicant to file and serve a notice of appeal.  The expression "for special reasons" was explained in Jess v Scott (1986) 12 FCR 187 at 195 per Lockhart, Sheppard and Burchett JJ.  There it was said it requires the establishment of grounds sufficient in the particular circumstances to justify departure from the time period prescribed for an appeal by order 52 rule 15(1)(a).

As their Honours there stated:

“…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.”

As their Honours pointed out, the power contained in O 52 r 15(2) is a discretionary one.  Factors to be taken into account in the exercise of the discretion include the following:  namely, the importance of the questions sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed ground of appeal:  see Jess at 188.

4                     The circumstances of the applicant's case are as follows.  He is an Iranian national of Arabic ethnicity in his early twenties.  He arrived in Australia on 23 December 2000 as an "unlawful non‑citizen" as defined by s 14 of the Migration Act 1958 (Cth) (“the Act”).  Pursuant to s 189 of the Act the applicant was detained and has been held in "immigration detention" thereafter.  His application for a protection visa was lodged on 9 January 2001.  Pursuant to the requirements of s 36(2) of the Act he was required to comply with the criterion for a protection visa.  That required him to say he was a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.  That in turn required him to show that owing to a well‑founded fear of being persecuted, he sought the visa and that his fear arose for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5                     The applicant's claims as recorded by the Tribunal were as follows:

“[The applicant] states that he suffers discrimination because he is an ethnic Arab.  He states that Arabs are insulted and Persians are favoured.  He was not able to obtain a government job.  Despite applying for several positions, less-qualified Persians were preferred.  He initially claimed that some three years ago, the government confiscated farmland, including his family’s land, providing inadequate compensation and promising to provide jobs for the sons of farmers whose land was resumed.  The jobs were not provided and people who protested disappeared.  He told the Tribunal that this occurred seven or eight years ago and again just recently.  He added that his family still has some land but it was rendered useless during the war with Iraq. 

He states that he was continually abused and insulted at school so he did not go past level three.  Sometimes, the teachers insulted him because he is an Arab.  He left school and contributed support to his family in 1989 and he had problems with his family regarding work.  A few months before he left for Australia, he was detained by religious police because he wore the wrong pants.  He refused to pay a bribe and also refused to sign a document that mentioned adverse involvement against the government, and he was released after two days.  He was not harassed again as a consequence of that incident.

Two or three years ago, the Applicant’s parents and his cousin’s parents made a marriage arrangement.  He fell in love with his cousin and they determined to marry according to their parents’ wishes.  They became boy- and girlfriend.  His family and her father approved the marriage plans, but told them to wait, while her brothers disapproved.  He said her brothers did not like him because he did not work.  Tired of waiting to marry, about three and a half months before the Applicant left for Australia, they slept together, anticipating that her brothers and cousins would then approve their marriage.  He told the Tribunal that she had not intended to inform her brothers but they found out after her elder sister told her parents what had transpired.  Indeed, her sister rang to inform them that she was going to tell her mother and to advise the Applicant to go into hiding because her brothers would be angry.  They were angered as she had predicted and threatened to kill the Applicant.  He told the compliance interviewer they chased him with guns, although his evidence at the hearing was that he managed to avoid them.

…

The Applicant went into hiding with relatives in nearby villages.  First he went to an uncle’s house.  His brothers told him that her brothers wanted to kill him by stoning him to death, according to Islamic custom. …”

6                     The Tribunal said that it did not accept all of the applicant's claims but it did accept that he had encountered problems over his relationship with his cousin.  It also found that the applicant's fears were not Convention related.  They record that the applicant himself conceded at the hearing that his pursuers did not wish to hurt him for reason of race, religion, nationality or political opinion.  In relation to membership of a political group the Tribunal found that his fear was for that reason, namely because he was targeted by his fiancee's brothers not because of his membership of a group but for something he had done in relation to the sister.

7                     The Tribunal also examined allegations of bullying at school, absence of employment, detention due to wearing wrong clothing and alleged persecution as an Arab.  The Tribunal found that none of those matters gave rise to a Convention related fear.

8                     Before Lee J the applicant did not add to the grounds in his application for review but repeated his claims made to the Tribunal.  Lee J gave an ex tempore judgment against the applicant.  He made orders that the application be dismissed and indicated that written reasons for decision would be published at a later date.

9                     The applicant appeared in person before Lee J with the assistance of an accredited Farsi interpreter.  His Honour's judgment was interpreted by that interpreter to the applicant.

10                  Lee J's reasons for that judgment were published on 4 December 2001, which was the date when the applicant received the copy of the written reasons for decision.

11                  In his affidavit supporting his application for extension of time, the applicant said he had not received any refusal document, as he described it, before 4 December 2001.  However, that evidence cannot be accepted in the face of the evidence as to what occurred in court on 10 September 2001.

12                  Nevertheless, the applicant is a person appearing without a lawyer and not familiar with the law and he is in a foreign country, the laws of which are not familiar to him.  The respondent's case concedes that the applicant's detention, his lack of English and lack of access to a lawyer or legal expertise, taken together with the delay in receipt of the written reasons for decision and the reasonably prompt action he took once those reasons were provided, may afford a basis for finding the existence of special reasons within the meaning of O 52 r 15(2).  I agree with that submission.

13                  However, the power in O 52 to which I have referred, as previously said, is a discretionary one.  In deciding whether or not to exercise that discretion, the Court is required to consider whether an applicant has demonstrated that his or her appeal may have a sufficient prospect of success to make it just that he or she should now be allowed to proceed with it; see Kalaba v R [1996] (Finn J, 13 September 1996, unreported) at [12]; Howard v Australian Electoral Commission [2000] FCA 1767 at [7]; and W105/99A v Minister for Immigration & Multicultural Affairs (R.D. Nicholson J, 13 December 2001, unreported) at [13].

14                  Here the applicant has not filed an affidavit showing any case he wishes to raise or questions which might be involved in the appeal.  Nor has he filed any proposed notice of appeal which might disclose those matters.  It would be artificial to think that he would be able to do so because he is unrepresented and unknowledgeable in Australian law.  However, the law is that it is not sufficient that he now wishes to appeal Lee J's decision.  He must raise a ground or grounds of appeal of sufficient prima facie strength so as to demonstrate that the appeal may have sufficient prospect of success to make it just to grant the extension of time sought.

15                  When the reasons of Lee J are examined it is apparent there is nothing open to the applicant to raise as a ground of appeal in the circumstances where there are findings of fact that all of these fears and grounds of fear claimed by him were found by the Tribunal to be non-Convention related.  The opportunity to repeat his claims made before the Tribunal and Lee J on appeal would not establish any prima facie strength of an appellate case.  Accordingly, in all those circumstances it is clear that the discretion of the Court must be exercised against the grant of leave to file and serve an appeal from the decision of Lee J.

Associate:

Dated:              5 March 2002