FEDERAL COURT OF AUSTRALIA

VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 196

PRACTICE AND PROCEDURE – application for extension of time within which to file and serve notice of appeal – O 52 r 15(1) of the Federal Court Rules – whether Court should grant extension of time – whether explanation of delay sufficient to excuse or at least explain delay – whether prospects of success on foreshadowed appeal sufficient to grant extension

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

Migration Act 1958 (Cth), ss  424A(1) and (3)(b)

Federal Court Rules, O 52 r 15(1)

Jess v Scott (1986) 12 FCR 187 at 195 applied

VAF v Minister for Immigration and Multicultural Affairs [2003] FCA 18 referred to

Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 referred to

VAF v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V76 of 2003

WEINBERG J

13 MARCH 2003

MELBOURNE

THE COURT ORDERS THAT:

1.                   An extension of time be granted to the applicant until 14 March 2003 to file and serve a notice of appeal in accordance with grounds 1(b) and (c) of the “amended proposed notice of appeal” filed with the Court this day.

2.                   Costs be costs in the appeal.

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

REASONS FOR JUDGMENT

1                     This is an application for an extension of time within which to appeal from a judgment of a judge of this Court delivered on 21 January 2003.  In that judgment, his Honour dismissed an application for review of a decision of the Refugee Review Tribunal (“RRT”) made on 29 August 2001. 

2                     The applicant failed to file a notice of appeal within the twenty-one day period specified in O 52 r 15(1) of the Federal Court Rules.  Under that rule, “the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal”.  An application for an extension of time may be heard and determined by a single judge, or by a Full Court: Federal Court of Australia Act 1976 (Cth), s 25(2)(b). 

3                     The power conferred by O 52 r 15(1) is plainly discretionary in nature.  The considerations which guide the exercise of that discretion are well established.  The first is whether the reasons advanced by the applicant for his delay are sufficient to excuse, or at least explain, the delay.  The second is whether the applicant has an arguable case on the appeal.  See generally Jess v Scott (1986) 12 FCR 187 at 195. 

4                     In relation to the first consideration, that being delay, the applicant formally filed an application for an extension of time on 3 March 2003 (some 20 days late).  However, it is accepted by the parties that the applicant did in fact endeavour to file a notice of appeal on 17 February 2003.  So much is clear from a document submitted by the applicant at the hearing of this matter which was titled “Notice of Appeal” and stamped by the Court as having been lodged on that date. 

5                     It appears that the applicant was told, after seeking to file this document, that his notice of appeal was out of time.  He was further told that he would need to file an application for an extension of time if he wished to pursue his claim.  Any delay which occurred after 17 February 2003 was entirely explicable, having regard to the applicant’s need to procure appropriate evidence, and to retain counsel to prepare this application. 

6                     It therefore appears that the relevant period for this Court to consider, in relation to the question of delay, is the period between 11 February 2003, the date on which the applicant’s right of appeal lapsed, and the attempt by the applicant to file a notice of appeal on 17 February 2003. 

7                     The applicant stated, in an affidavit filed in support of his application, that the delay was largely the result of his difficulties with the English language, and financial restrictions on his capacity to instruct his solicitor.  These are matters which it is proper to take into account, particularly in relation to his need to have explained, in language which could be understood, the intricacies of a complex judgment dealing with what is a notoriously difficult branch of the law.  In all the circumstances, I am of the view that what is in truth only a short delay, of approximately six days, is sufficiently explained by the applicant, and would not preclude the exercise of the Court’s discretion in his favour. 

8                     I now turn to the second of the considerations identified above.  That is, whether the applicant’s case is sufficiently arguable to justify the exercise of the Court’s discretion?  That consideration necessarily requires some analysis of the applicant’s prospects of success in his foreshadowed appeal. 

9                     The applicant identified four grounds of appeal in his amended proposed notice of appeal.  However, it became clear during the hearing of this proceeding that grounds (a) and (d) were untenable, and they were effectively abandoned by his counsel.  The other two grounds contended that:

·                     the primary judge had erred in finding that the RRT had not committed a jurisdictional error when it came to interpret the term “persecution” (ground (b)); and

·                     the primary judge had erred in relation to s 424A of the Migration Act 1958 (Cth) (ground (c)).

10                  Dealing first with ground (c), the applicant contends that the primary judge erred in finding that the RRT was not required to invite him to comment upon the significance of certain “facts” (identified in [13] of the primary judge’s judgment in VAF v Minister for Immigration and Multicultural Affairs [2003] FCA 18) as provided for in s  424A of the Migration Act 1958 (Cth). 

11                  The “facts” referred to are the applicant’s attendance at a conference in Australia, sponsored by the Trades and Labour Council, and his apparent failure to seek assistance from “contacts” who could have been of assistance to him if he were fleeing Pakistan to escape persecution or death, as claimed, during that conference.  The primary judge noted, as is obviously the case, that the RRT had viewed the “facts” in a manner that was damaging to the applicant’s credit.  The question was whether s 424A(1) operated to require that the RRT invite the applicant to comment upon the information.  The primary judge found that s 424A(3)(b) operated in relation to the “facts” and that the RRT was therefore not required to invite the applicant to comment upon them.  His Honour applied a decision of the Full Court in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 which he felt bound to follow.  However, he appeared to express some doubts regarding its correctness. 

12                  The applicant contends that the primary judge erred by applying s 424A(3)(b) so as to exclude the duty under s 424A(1).  He submits that the “information” which the RRT took into account, adversely to his claim, was not information “that he gave for the purpose of the application”.  That contention seems to me to be arguable, though I make no comment as to its persuasiveness, or otherwise. 

13                  I turn now to the second foreshadowed ground of appeal in relation to the RRT’s treatment of the term “persecution”.  I must say that I view this ground much less favourably than ground (c).  However, given that I propose to grant an extension of time to enable ground (c) to be argued, and given also that I cannot say that ground (b) is wholly devoid of merit, I think it is appropriate that the applicant have the opportunity to seek to persuade the Full Court that the primary judge erred in the manner for which he contends. 

14                  The applicant submitted that in the event that I granted an extension of time, the respondent should be ordered to pay the costs of this application.  The basis for that submission was that the respondent had acted unreasonably in opposing the application.  I reject that submission.  I am of the view that the costs of this application for an extension of time should be costs of the appeal.  Prior to the hearing of this matter today, the applicant did not provide an adequate explanation as to the delay between 11 February 2003 and 3 March 2003, when he formally filed an application for an extension of time.  It was only during the hearing of this proceeding that it emerged that there had been an earlier attempt to file a notice of appeal on 17 February 2003.  The respondent was fully justified in opposing the application on the basis of the material made known to him, and to the Court, prior to the hearing of this matter.  In all the circumstances, the costs of today should therefore be costs of the appeal.

Associate:

Dated:              13 March 2003