FEDERAL COURT OF AUSTRALIA

NAQQ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 607

NAQQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 610 of 2003

JACOBSON J

10 JUNE 2003

SYDNEY

THE COURT ORDERS THAT:

1                    The application for extension of time in which to file a notice of appeal be dismissed.

2                    The applicant pay the respondent’s costs of the proceedings.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application under O 52 r 15 for an extension of time to file a notice of appeal from a decision of her Honour, Matthews J.  Her Honour's decision was handed down in April 1999 and the present application is therefore made more than four years after the expiry of the time for filing a notice of appeal. 

2                     The rule provides that the court has a discretion to extend time where special reasons are shown.

3                     The meaning of the term "special reasons" was explained by a Full Court in Jess v Scott (1986) 12 FCR 187 at 195.  It is necessary for me to state only that a reason must be given which takes the case out of the ordinary. 

4                     In order for me to determine whether there are special reasons it is appropriate that I set out a brief chronology of the matter.

5                     The applicant is a citizen of Turkey who arrived in Australia on 20 October 1987.  He lived in Australia for nearly 10 years until June 1997 when he was detained by an officer of the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”).  He was placed in immigration detention in about June 1997 but he applied for a protection visa on 26 June 1997.  He was at or about that time granted a bridging visa and was released from immigration detention on or about 2 July 1997.  It is important to note that he did not re-enter immigration detention until about the end of February 2003. 

6                     The application for a protection visa was refused by a Delegate of the Minister  in or about early July 1997.  Shortly afterward, at a time when the applicant was not in immigration detention, he was invited to attend a hearing before the RRT.

7                     This invitation was extended in accordance with s 425 of the Migration Act 1958 (Cth) (“the Act”) as it then stood.  Under s 425(1)(a) of the Act the RRT was bound to give the applicant an opportunity to appear before it to give evidence.  Section 425(2) provided that subject to sub-section (1)(a) the RRT was not required to allow a person to address it orally about the issues arising in relation to the decision under review.

8                     Notwithstanding the invitation, the applicant did not appear at the hearing before the RRT.  He has endeavoured to explain to me today that the reason why he did not attend the hearing was that he suffered from a psychological condition which he says was caused by his detention and that caused him to become mixed up about the date for the interview at the RRT.

9                     On 22 October 1998 the RRT handed down its decision affirming the decision of the delegate to refuse the applicant a protection visa.

10                  The applicant applied to this court for judicial review of the decision of the RRT.  Matthews J heard the application on 7 April 1999.  Her Honour delivered an ex tempore judgment refusing the application for review.  It is important to note that the applicant was represented in the proceedings before her Honour by a solicitor, Mr Simon Diab, of the firm John H Maait & Co.

11                  On 5 May 1999, after the expiry of the time for lodgement of a notice of appeal against her Honour's decision, Mr Diab wrote to the Minister.  The letter states that Mr Diab was instructed to make an application to the Minister to exercise his discretion to grant the applicant a permanent residency visa under s 417 of the Act.  The letter also states that Mr Diab was instructed to make an application to the Minister under s 48B of the Act to allow the applicant to make a fresh application for a protection visa.

12                  The letter notes that the RRT made a determination without the applicant attending the hearing.  The letter states the reason given by the applicant for not attending, namely that he had confused the hearing dates and was not able therefore to attend the hearing. 

13                  On 10 August 1999 the Department made a decision not to refer the request which was made under s 48B to the Minister for his consideration. 

14                  On 14 November 1999 the Minister decided not to exercise his power under s 417 of the Act.

15                  In or about mid-December 1999 the applicant's bridging visa expired but he continued to remain in Australia. 

16                  On 28 February 2003 the applicant was detained by the Department and placed in immigration detention.

17                  On 21 March 2003, while he was in detention, the applicant made a further request under s 48B of the Act for leave to file a fresh application.  This was refused on the same day but applications in respect of the refusal have been made by the applicant to he RRT and the Federal Magistrates Court.

18                  The applicant's application for an extension of time to file and serve his notice of appeal against the decision of Matthews J was filed on 20 May 2003 while the applicant remained in immigration detention. 

19                  The application was supported by an affidavit sworn by the applicant on 20 May 2003.

20                  The chronology events which I have set out shows that the applicant was not in immigration detention when he appeared before Matthews J on 7 April 1999.  Nor was he in immigration detention during the period following her Honour's decision.  As I have already said, he did not enter immigration detention until nearly four years after her Honour's decision.

21                  It seems to me that this shows that I cannot give any weight to the applicant's submission that the reason for the delay in lodging the notice of appeal was that he felt under pressure from either the Department or the RRT.

22                  What seems to tell most strongly against any suggestion that there are special reasons for the delay is that the applicant was legally represented before Matthews J and continued to be legally represented until at least 5 May 1999, when Mr Diab wrote to the Minister.

23                  The letter of 5 May 1999 seems to me to indicate that the applicant, on legal advice, had decided to explore other possibilities of obtaining refugee status in lieu of pursuing an appeal from the decision of Matthews J.

24                  The present application seems to me to be distinguishable from the decision of Mansfield J in Ariaee v Minister for Immigration & Multicultural Affairs [2001] FCA 1627.  I referred the solicitor who appeared for the Minister to this case because it seemed to me that unless it could be distinguished there may be a reason why I ought to grant the application.  However, the facts of the present application are quite different from those to which Mansfield J referred at paragraph [14] of the decision.  In particular, the applicant in that case acted promptly after he had received a copy of the reasons for the court's decision.

25                  That is not the case here where there has been a lengthy and substantially unexplained delay of four years since the decision of Matthews J was handed down.

26                  Even if there were "special reasons", I would not be inclined to exercise my discretion in favour of the application because it does not seem to me that the applicant has demonstrated any prospects of success on appeal. 

27                  I have taken into account the fact that he is not legally represented before me today.  However it is plain that the draft notice of appeal annexed to the application for extension of time does not state any grounds.  Three grounds for appeal seem to be found in the applicant's affidavit.  The first ground is that he should be accepted as a refugee, the second is that he did not attend the hearing before the RRT in 1998 because he mixed up the interview date as a result of psychological distress and nervous sickness resulting from his detention.  The third is that the RRT decided his case on the basis of inadequate and incorrect information because he has evidence of his Kurdish identity and evidence that he belongs to the Allevi culture.

28                  I note that there is nothing in the application or in the affidavit or in any submission which has been put to me today which would suggest that the applicant was denied procedural fairness in relation to the decision of the RRT handed down in 1998.

29                  As to the first and third apparent grounds of review revealed in the applicant's affidavit, these do not constitute grounds for judicial review.  It is well established that merits review is not a function of this court. 

30                  As to the second ground of appeal, this issue was addressed by Matthews J.  Her Honour said at paragraph [15] that no admissible evidence had been adduced before her as to why the applicant failed to appear before the RRT on 20 October 1998.  Her Honour then observed that in any event the relevant issue before her was not the reason why the applicant failed to attend before the RRT but whether the RRT erred in determining the matter in his absence.

31                  Her Honour then said at [16]:

“In Minister for Immigration and Multicultural Affairs v Capitly (Wilcox, Hill and Madgwick JJ, 5 March 1999, unreported) the Full Court of this Court upheld the decision of a single judge which found that the Tribunal had not complied with its obligation under s 425 of the Act, in circumstances where there was evidence that the Tribunal had been alerted before the making of its decision that the applicant had not attended to give evidence because he was ill. However this is not such a case. Serious as the consequences were to the applicant, the Tribunal had, in my view, done all that was necessary or required under ss 420 or 425 when it gave its decision on 22 October 1998. The applicant had personally been notified of the hearing on 20 October. He had personally responded to that notification. There was no explanation for his failure to attend and the Tribunal was not, in my view, required to seek one before it proceeded to deal with the matter upon the material before it.”

32                  I can see no error in the approach which her Honour took to the determination of that question. 

33                  It follows that in my opinion the application must be dismissed and I propose to so order.  The Minister's counsel asks for an order for costs against the applicant, therefore, I will dismiss the application with costs.

Associate:

Dated:              17 June 2003