FEDERAL COURT OF AUSTRALIA

WAHG v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 804

MIGRATION – judicial review – application to extend time within which to file notice of appeal from Federal Magistrates Court – thirteen month delay – no arguable grounds of appeal – application to extend time dismissed.

W401 v Minister for Immigration & Multicultural Affairs [2002] FCA 48 cited

W401 v Minister for Immigration & Multicultural Affairs [2001] FCA 1738 cited

WAHG v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W111 OF 2004

FRENCH J

18 JUNE 2004

PERTH

THE COURT ORDERS THAT:

1.         The application for an extension of time for filing an appeal against the decision of the Federal Magistrates Court given on 19 March 2003 is dismissed.

2.         The applicant is to 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, who seeks an extension of time to appeal against a decision of the Federal Magistrates Court, came to Australia in March 2001 from Afghanistan without lawful authority.  He applied for a protection class XA visa after his arrival in this country but that application was refused by a delegate of the Minister on 21 May 2001.  He sought review of that decision in the Refugee Review Tribunal (‘the Tribunal’) and on 21 August 2001 the Tribunal affirmed the delegate's decision.**INFO TO BE KEYED IN BY TYPIST FOR COORDINATION PURPOSES**

TYPIST INITIALS:    MR/lt

TAPE NUMBER:    3

TIME OF TAPE:  (eg 10.35 am)    2.31 pm

LAST WORDS PREVIOUS TAPE:    the delegates decision

LAST WORDS SPOKEN BY:    His Honour

WITNESS:  (eg H. LEE  XN)   

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2                     The Tribunal's decision was set aside on 14 January 2002 by an order of this Court and the matter was remitted to the Tribunal to be reconsidered according to law.  The Tribunal was found to have failed to give consideration to whether there was a real chance of persecution of the applicant upon his return because of the fact that he had made a claim for protection in Australia – W401 v Minister for Immigration & Multicultural Affairs [2002] FCA 48 and W401 v Minister for Immigration & Multicultural Affairs [2001] FCA 1738.

3                     The reconstituted Tribunal reconsidered the applicant's claims.  At the time of that reconsideration the Taliban had been overcome as an effective force of government in Afghanistan. On 31 May 2002 the Tribunal, having regard to those changed circumstances, affirmed the decision to refuse a protection visa.

4                     The applicant then went back to the Federal Court seeking judicial review of the second Tribunal decision.  The Federal Court remitted that application for hearing by the Federal Magistrates Court.  The matter was heard by his Honour Magistrate Raphael on 17 March 2003 and on 19 March 2003 he ordered that the application be dismissed and that the applicant pay the respondent's costs which he fixed in the sum of $4,250.  Some 13 months later, on 26 May this year, the applicant lodged an application for an extension of time to file and serve a notice of appeal against the decision of the Federal Magistrates Court.  He supported that application with an affidavit sworn on 27 May.  He said in the affidavit that he had arranged for representation in the Federal Magistrates Court but that his legal adviser had advised him not to proceed or, as he put it, to give up and stop appealing any more because he had no chance of success.

5                     At the time he was before the Federal Magistrates Court the applicant was evidently endeavouring to get a visa to a third country to be with his wife.  He had tried to do this in 2001 and 2002.  He wanted to be free.  He said he could not return to Afghanistan.  He claimed that he even had a travel document to get a third country visa.  He said that after being refused a third country visa:

‘... I got all confuse and depressed an I did try to get departure from the country and did not have any option to follow.  So the given time From the Court to apply to the Next Court has passed because of that Confusion, depression. Not Paying my concentration and not have any option.’ (sic)

6                     The applicant filed a written submission in support of his application to extend time.  In that written submission he said that he was unable to give the Federal Magistrates Court a credible account of the mistakes made in the Tribunal decision because his lawyer had abandoned him immediately before court.  He said that special reasons exist for the grant of an extension of time.  These reasons as outlined in his affidavit of 25 May were said to be:

(a)        poor legal advice;

(b)        his mental status because of his indefinite and long detention. 

7                     The applicant said, that as an asylum seeker in this country, he believed what his lawyer had told him to be true and did not appeal the Court's decision but upon reflection he has come to the view that he received bad advice which he followed to his detriment.  He said he realises that the Court must have a reasonable basis for believing that his appeal would have an arguable foundation if it is to extend time.  The arguable grounds of appeal would include the Tribunal member's dismissal of well-founded Afghan customs, the custom by which every son is known by reference to his father's acts, and that related directly to the refusal of the application by the Tribunal.  He referred to the Tribunal dismissal of his adviser's claim that he would be persecuted because of his membership of the Pashtun ethnic group from his mother's side.  The Tribunal had not considered that as a member of that ethnic group he would be persecuted by the current government. **INFO TO BE KEYED IN BY TYPIST FOR COORDINATION PURPOSES**

TYPIST INITIALS:    LP

TAPE NUMBER:    4

TIME OF TAPE:  (eg 10.35 am)    2.38 pm

LAST WORDS PREVIOUS TAPE:    the current government

LAST WORDS SPOKEN BY:    HIS HONOUR

WITNESS:  (eg H. LEE  XN)   

CHECKED BY:   

8                     It was accepted by the Tribunal that the Taliban had mistreated the applicant because of his father's political activities and involvement in a party called Hezb-i-Islami.  That party and its leader were opposed to the interim government and foreign forces in Afghanistan.  The Tribunal accepted that the reason the applicant was mistreated by the Taliban was because they suspected his father had opposed them and because he was a young man who could be forced to fight for them, but once again did not consider his well‑founded fear of persecution at the hands of the interim government.  The Tribunal also rejected a contention that Mr Karzai, the post-Taliban President of Afghanistan, had referred to the leader of Hezb-i-Islami as a terrorist. 

9                     These matters, raised in the written submissions, went to questions of facts found by the Tribunal.  The essential issues were considered by the Federal Magistrate in his judgment and I cannot see in the papers before me or in the reasons for judgment of the Federal Magistrate any indication of the kind of error that would support an appeal.  I conclude that the likelihood of a successful appeal, having regard to what has been said in the applicant's submissions and having regard to my own reading of the magistrate's reasons, is very small.

10                  The Court, under O 52 r 15, requires special reasons to be shown before it will give leave to file and serve a notice of appeal outside the period of 21 days which is referred to in O52 r 15(1).  Nothing in what the applicant has said constitutes special reasons for an extension of time, particularly having regard to the delay that has ensued since the judgment was given, a period of some 13 months, and the absence of any unusual set of circumstances that might justify that delay.  Having regard to the absence of any meritorious ground of appeal, there remains only speculation by the applicant that if he gets proper legal advice he might be able to find some grounds of appeal.  I conclude that there is no basis for granting the extension and the application for an extension of time will be refused.

Associate:

Dated:              24 June 2004