FEDERAL COURT OF AUSTRALIA

WAGL v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 595

MIGRATION -  judicial review – protection visa – review of Refugee Review Tribunal decision – notice of appeal against decision of judge on review lodged six days out of time – application for extension of time some weeks later – little prospect of success – no special reason for granting extension of time – application for extension of time refused.

WAGL v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W343 OF 2002

FRENCH J

13 JUNE 2003

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

ON APPLICATION FOR EXTENSION OF TIME FOR APPEAL

1                     The applicant, who claims to be an Iranian national, arrived in Australia without lawful  authority on 25 March 2001.  On 10 October 2001 he lodged an application for a protection visa.  A delegate of the Minister for Immigration and Multicultural and Indigenous affairs refused the grant of the visa on 12 November 2001.  On 19 November 2001, the applicant sought review of that decision by the Refugee Review Tribunal (“the Tribunal”).  Following a hearing on 23 January 2002, the Tribunal made a decision on 23 April 2002 affirming the decision not to grant a protection visa.

2                     The applicant told the Tribunal that he used to play soccer professionally in Iran and completed military service in 1998.  He has never married and has no children.  One of his brothers is in England and has converted to Christianity.  He said he has an uncle now in Sweden who is also a Christian.  When visiting him in Iran his uncle used to urge him to convert to Christianity.  Eventually the applicant said he began secretly to practice Christianity.  He also began to wear a cross around his neck and would celebrate after winning a game by kissing it and crossing his heart.  This, he said, led him to being sacked from the team.  He opened a sports shop in Isfahan with a distant relative.  There he met two other coaches from teams in Isfahan that wanted him to play for them.  To do that he had to obtain a clearance form from his old club.  When he went back to his home town Abadan, for that purpose, he took part in some demonstrations about the drinking water.  He shouted anti-government slogans at the demonstration. 

3                     Upon his return to Isfahan he was contacted by his family who told him that many people who attended the demonstration had been arrested.  People had come to his home looking for him.  They had found the cross and Christian literature in his room.  They had detained his father and brother to find out where he was and after some severe beatings they were released.  The applicant decided to flee Iran in fear of his life.  He did this with the help of smugglers.

4                     The Tribunal rejected a number of important elements of the applicant’s story.  It did not accept that he was ever sacked from the football team for reasons that could have come to the attention of the police, the security authorities or other authorities.  It did not believe that he sought exile in Isfahan.  It did not accept as factual the pretext he provided for being back in Abadan at the time of the water protest.  The Tribunal had serious doubts about whether the applicant attended the protest at all.  Assuming that the applicant was one of thousands who attended the demonstration, the Tribunal concluded, on the basis of his description of his participation, that he would be of no interest to the authorities in relation to the episode.  This was said to have been evidenced by the ease with which he departed from Iran. 

5                     The Tribunal did not believe that the applicant’s home was searched by police after the protest.  It accepted his early claim to the effect that he is a Muslim, albeit not a particularly devout one.  It also accepted that he might be disaffected by the power and corruption of the clergy in Iranian politics but that did not of itself make Christians out of Muslims.  Nor did the Tribunal accept the applicant’s or his adviser’s arguments explaining why the key claims in this application were not introduced at the entry interview.

6                     In the event the Tribunal concluded that the applicant was an unreliable witness and that it was not satisfied that he faced a real chance of Convention-related persecution in Iran. 

7                     The applicant sought review of the Tribunal’s decision in this Court but on 30 July 2002 RD Nicholson J dismissed his application.  The applicant had not specified any grounds for review before his Honour but on the day of the hearing faxed to the Court a list of five items which he said gave rise to legal error in the reasoning of the Tribunal.  The applicant appeared unrepresented.  His Honour found that the grounds relied upon were in the nature of challenges to findings of fact.  There was nothing in them capable of showing that the findings of fact were not open to the Tribunal and were not lawfully made.  The Tribunal had not accepted the applicant’s credibility and there was nothing which indicated that the findings made were not supported by the material before it or were made after not giving the applicant an opportunity to further address the Tribunal.

8                     On 26 August 2002 the applicant forwarded a notice of appeal from the judgment of Nicholson J to the Court.  The notice was not accepted by the Court for filing because it was received more than twenty one days after judgment was given.  In the notice of appeal the applicant stated:

“I had sent some issues about the RRT’s decision to the Federal Court.  But these issues are not considered properly. 

I beg this honour court to consider these errors again. 

Also I beg his honour to provide a legal assistant for my appeal.’ (sic)

9                     An application for extension of time to file and serve a notice of appeal was eventually lodged with the Court on 16 October 2002.  In that application the applicant said:

‘I did not understand the time limits for lodging an application.’

In his affidavit in support he said he thought that the time limit was twenty eight days.

10                  Order 52 r 15 provides, in relation to appeals from single judges of this Court:

‘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 a motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

(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.’

Because of the lapse of time before an application for leave to appeal out of time was made, it is necessary for the applicant to demonstrate special reasons for the extension of time which he seeks. 

11                  At the hearing of the application for extension of time I made orders in the following terms:

‘1.        The application for an extension of time within which to appeal is adjourned for decision on 13 June 2003 at 2.15pm.

2.         The applicant is at liberty to file written submissions and affidavit evidence in support of the application on or before 2 June 2003.

3.         The respondent may file any submissions in reply by 9 June 2003.

4.         There is liberty to apply.

5.         Costs today reserved.’

12                  These orders were made because at the time there was some possibility that the applicant might receive assistance with his application from the Refugee Advocacy Service of South Australia.  The applicant said he had asked RASSA to assist him but he had not yet given them formal authority to act on his behalf.  I said to the applicant at the time:

‘[WAGL], what I propose to do is to adjourn the application today, your application for an extension of time, to provide you and the South Australian group RASA (sic) with an opportunity to put written submissions about why your appeal should be allowed to proceed, even though it’s out of time.  At the moment I don’t think your application shows any real grounds for extending time.  It would be necessary to show that you had some case that you could actually argue on the appeal as to why Nicholson J was wrong.

So what I’m going to do is to allow you or RASA (sic) to put any written argument they may want to put and indeed to file any proposed new appeal grounds that they would want to rely on, so I can then decide whether it is worthwhile giving you an extension of time.’

13                  The formal orders set out above were then made and after having made them I explained them to the applicant through his interpreter.  In the event no submissions have been filed on behalf of the applicant nor any affidavit evidence. 

14                  Although the applicant attempted to file his notice of appeal only a short time after the time limited by the Rules for filing, there has been a considerable delay since the attempted filing of that notice and the filing of the application for an extension of time.  There is nothing in the materials to indicate any special reason for granting an extension of time.  The judgment of the Tribunal and the reasons of his Honour indicate that on the face of it there does not appear to be any reviewable error on the part of the Tribunal.  In the circumstances, in my opinion, it would be a waste of time granting an extension of time within which to appeal.  The application for an extension of time is dismissed with costs.

Associate:

Dated:              13 June 2003