FEDERAL COURT OF AUSTRALIA

P1/2003 v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1370

PROCEDURE – appeal – application for extension of time to file notice of appeal – error of solicitor and counsel – notice filed one day after due date – appeal said to be contingent upon admission of further evidence – grounds of appeal disclosing no sufficient prospects of success – proceeding from which appeal sought subject to grant of leave to appeal – proceeding interlocutory – review processes being otherwise accessed by applicant – extension refused

Migration Act 1958 (Cth) ss 196(1), 198A, 198A(3)

Federal Court Rules O 52 r 15

Jess v Scott (1986) 12 FCR 187 cited

Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517 cited

WAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 399 considered

WABX v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 300 cited

P1/2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W156 of 2003

RD NICHOLSON

26 NOVEMBER 2003

PERTH

THE COURT ORDERS THAT:

1.                  The applicant’s application for extension of time to file and serve a notice of appeal filed on 28 October 2003 be refused.

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 applies for an extension of time in which to file and serve a notice of appeal from a judgment of French J given on 26 September 2003.  The extension is required because the notice of appeal was not filed and served within the time limited by O 52 r 15 of the Federal Court Rules.  The notice was required to be filed by Friday, 17 October 2003.  It was in fact filed on Monday, 20 October 2003. 

2                     In WAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 399 the Court (Lee, RD Nicholson and Finkelstein JJ) described the requirements of O 52 r 15 in the following terms (at [5]-[7]):

‘The appellant relies upon O 52 r 15(2) to bring his appeal out of time.  The rule provides that “the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal”.  It is plain that the grant of leave under O 52 r 15(2) is not automatic.  As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12:

“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”

In cases under r 15(2) there is an added burden.  An extension of time will only be granted “for special reasons”.  The meaning of this was considered by the Full Court in Jess v Scott (1986) 12 FCR 187 at 195 where it was said:

            “It should not be overlooked that r 15(2) enables leave to be given ‘at any time’; the ‘special reasons’ relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period.  It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late.  ‘Special reasons’ must be understood in a sense capable of accommodating both types of situation.  It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.”

The discretion to extend time is given for the purpose of enabling the court to do justice between the parties:  Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262; Gallo v Dawson (1990) 93 ALR 479 at 480.  So, for example, where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted.’

3                     Here the evidence establishes and it is common ground that the need for the extension of time has been occasioned as a consequence of the applicant’s solicitor and counsel having miscalculated the time for filing of the appeal.

4                     The nature of the matter to which the reasons for judgment of French J given on 26 September 2003 related was an application for interlocutory relief by the applicant.  The applicant, who is a young Afghan national who came to Australia unlawfully in November 2001, seeks orders restraining the respondent from removing him to Nauru, and order in the nature of habeas corpus releasing him from detention and, alternatively, an order maintaining his present conditions of detention under which he resides in a motel near the Perth airport and attends a high school in the vicinity of that location. 

5                     The proceedings which the applicant has brought against the respondent were described by French J at [2] of his reasons as involving:

‘ …claims for compensatory aggravated and exemplary damages in relation to various breaches of duty said to be owed by the Minister to the plaintiff having regard to his minority.  In addition, there is declaratory and other relief sought on the basis that the provisions under which the plaintiff was removed to Nauru are invalid as beyond the legislative power of the Commonwealth.  Further, it is said that the Declaration of Nauru under the Migration Act 1958 (Cth) as a place to which the plaintiff could be removed was invalid.’

French J refused the ground of interlocutory relief and dismissed the applicant’s motion directed to that end but nevertheless ordered that the applicant have leave to appeal against the decision should he so wish.  In the conclusion of his reasons French J said that he did that ‘having regard to the issues raised and the practical importance of this matter to the plaintiff’. 

6                     The applicant submits that his claims were important because they test the ‘lawfulness of the Pacific Solution’.  However, presently leave is sought in relation to leave to appeal the interlocutory orders granted by French J.

7                     For the applicant, it is said that ‘special reasons’ exist, namely, that leave was granted by the primary judge on his own motion because of the importance of the issues to which his reasons related; the notice of motion involves the liberty of the subject; the proposed grounds of appeal are bona fide and not in the character of vexatious litigation; certain materials were not before the primary judge because of the respondent’s non-compliance with certain directions; and leave would be sought to have this evidence received on the hearing of the appeal; and, of course, the very short nature of the delay giving rise to the need for the application for extension of time.  Alternatively, it is submitted for the applicant, the issue of extension of time could be reserved to the Full Court on the hearing of the appeal. 

8                     For the respondent it is contended that none of the grounds of appeal should be seen as holding any likelihood of success; that, in any event, only one of the sub-grounds of appeal would be affected by the prospect of fresh evidence; and that the matter disposed of was an interlocutory one and does not constitute the final disposition of the matter. 

9                     As follows from the statement of law to which I have referred to above, it is relevant that the circumstances here involve a very short delay indeed.  This is not a case where there has been a delay persisting over a prolonged period, so something much less significant might justify leave because the party is only a day late:  cf Jess v Scott (1986) 12 FCR 187 at 195.  That was the case in Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517 where the then applicant’s legal advisors had overlooked an alteration of time permitted for the appeal.  Both there and in WABX v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 300 the view was that the applicant should not be obliged to show a reasonable prospect of success or a good arguable case before being granted an extension of time in which to lodge the notice of appeal.

10                  However, here the respondent’s case was argued in relation to whether there are reasonable prospects of success.  Accordingly, it is necessary to proceed to a consideration of the grounds of appeal not on the basis of finally resolving their merit, but on the basis of considering whether they offer sufficient prospects of success. 

11                  The first ground contends that his Honour was in error of law when he found there was no serious question to be tried as to whether the legislative power of the Commonwealth under s 51(XIX) of the Constitution or otherwise extended to the making of laws such as ss 198A, 198B and 198C of the Migration Act 1958 (Cth) (‘the Act’).  In his reasons French J held that the applicant’s arguments going to the validity of s 198A of the Act did not give rise to a question to be tried which was sufficiently serious to warrant restraining the respondent from removing the applicant from Australia.  He described the claim of constitutional invalidity of s 198A as ‘at best, a pale shadow of a constitutional argument which may or may not solidify to something of substance with further development’.  For the respondent it is said that even if s 198A of the Act is found to be invalid so that the applicant is not a ‘transitory person’ he would nevertheless be an unlawful non-citizen and an offshore entry person as defined by s 5 of the Act.  He would, therefore, be required to be taken into immigration detention pursuant to s 189(1) of the Act and kept there pursuant to s 196(1) until removed from Australia under s 198.  Section 198(2) would apply to him as a person covered by s 193(1)(b) of the Act.  The consequence is that even if French J was in error and there is a serious issue to be tried as to the constitutional validity of s 198A, the existence of the alternative statutory duties of removal would mean that his claim that his removal from Australia would be unlawful, could not succeed.  Therefore, I do not consider the first ground of appeal can be characterised as having sufficient prospects of success to make it just to grant an extension of time. 

12                  The second ground, which appears as the second limb of the first ground, is that his Honour erred in law when he found there was a serious question to be tried as to whether the declaration of the respondent under the provisions of s 198A(3) of the Act was valid, having regard in particular to the absence of evidence from the respondent in support of the declaration.  It is in relation to this ground that the applicant would seek leave from the appellate court to file evidence concerning the nature of the successive declarations made by the respondent concerning Nauru, these being relevant to the issue of whether the applicant was or is a transitory person.  For the respondent it is said that the applicant’s reference to the absence of evidence is misplaced because the issue before French J was whether or not matters raised by the applicant supported a seriously arguable case against the validity of the declaration, this placing the onus upon the applicant to put forward material and argument to establish the serious issue.  Further, it is said, the issue was what was the position when the applicant was taken to Nauru in November 2001 – that is, was there a declaration in force.  It is said that it was not in dispute before the primary judge that there was a declaration in force. 

13                  The applicant went to Nauru on 29 December 2001.  The affidavit of Mr Okley tendered in support of this application attaches an Instrument of Declaration made on 2 October 2001 declaring Nauru to be a declared country under s 198A(3) of the Act on the basis that it meets the criteria set out in that subsection.  The declaration was expressed to be in effect until 1 October 2002.  In reply it is submitted for the applicant that the relevant date for the application of this ground is 22 September 2003 when the matter came on for hearing before French J.  It is said that the question is whether on that date Nauru fulfilled the requirements of s 198A(3) of the Act and it was contended there was no evidence of that kind before the primary judge.

14                  The reasoning of French J on this point was that s 198A(3) does not in its terms make the power to make a declaration conditional upon satisfaction of the standards which are its subject matter, and its form suggests a legislative intention that the subject matter of the declaration is a matter for Ministerial discretion.  He therefore found that the applicant’s claim that any future removal of him to Nauru would be unlawful because the declaration under s 198A(3) that Nauru met the requirements set out in that subsection was invalid did not raise a seriously arguable case.  The proposed submissions for the applicant on this point, being directed to new evidence, do not challenge this proposition of law and I am not able, therefore, to conclude that the applicant’s case, even with the assistance of the additional evidence proposed, would have sufficient prospect of success. 

15                  The next ground of appeal contends that French J erred when he failed to consider and determine the applicant’s submission that the respondent would be in breach of Australia’s obligations under the Convention Relating to the Status of Refugees of 28 July 1957 and the Protocol Relating to the Status of Refugees (‘the Convention’), which prohibits refoulement, should he return the applicant involuntarily to Nauru, having regard to the evidence that Nauru is not a party to the Convention, and has no effective procedures for processing applications for refugee status.  This was not referred to in the reasons of French J.  The respondent contends that his Honour was not obliged to make reference to it because neither in the amended statement of claim nor in the minute of proposed amended statement of claim dated 22 September 2003 does the applicant make a claim in those terms.  Therefore, an interlocutory order restraining the applicant’s removal to Nauru is not required in order to preserve the subject matter of the proceedings as they do not include that claim.  Further, reliance is placed on the argument that nothing was put forward by the applicant to show how in the circumstances where his claims for refugee status had been assessed and refused by officers of the Department of Immigration and Multicultural and Indigenous Affairs, his future removal would potentially breach such obligations.  That submission is not answered on behalf of the applicant.  The ground, therefore, cannot be said to have sufficient prospects of success so as to support the exercise of the discretion to grant the extension. 

16                  The final proposed ground of appeal is that the primary judge was in error of law when, in dismissing the application for relief by way of habeas corpus, he failed correctly to apply the appropriate onus of proof, in particular by failing to require the respondent to demonstrate on the balance of probabilities that future detention of the applicant whether in Australia or in Nauru would be lawful.  In his reasons French J said that such an order as was sought by the applicant in this respect could only be upon the basis of a seriously arguable case that his detention was unlawful but that no such case had been disclosed.  The respondent relies on the fact that it is not in dispute that the applicant is an unlawful non-citizen so that his detention is mandated by the provisions of s 196(1) of the Act.  Nothing is advanced on behalf of the applicant to shift the prime facie lawfulness of the applicant’s detention.  The fourth ground also, therefore, does not appear to have sufficient prospects of success.

17                  I therefore accept the submissions for the respondent that none of the proposed grounds of appeal are capable of being characterised as displaying sufficient prospects of success for the applicant.

18                  Although the law does not require that the prospects of success necessarily be considered in circumstances of such a short delay as the present, the fact is that the respondent’s case was argued on that basis.  I have formed an opinion in relation to those submissions which is adverse to the applicant.  That opinion having been formed, there is nothing remaining to activate the exercise of the discretion in favour of the applicant save that the delay is extremely short.  However, bearing in mind that this is an application in relation an interlocutory proceeding and that it is common ground that the applicant has accessible to him and is taking advantage of the accessibility of review processes in relation to his status, it cannot be said that his liberty is alone dependent upon further argument on appeal from this interlocutory matter. 

19                  In my opinion, in the absence of sufficient prospects of success, the application for extension of time should be refused. 

Associate:

Dated:              26 November 2003