FEDERAL COURT OF AUSTRALIA

Applicant M169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 824

APPLICANT M169 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NO V675 OF 2004

HEEREY J

21 JUNE 2004

MELBOURNE

THE COURT ORDERS THAT:

1. The applicant have leave to file and serve a notice of appeal by 12 July 2004.

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 for appealing a decision of a judge of this Court given on 4 May 2004 which dismissed the applicant’s application for constitutional writs.  The notice of appeal must be filed and served within 21 days after that judgment unless the Court or a judge gives leave thereafter “for special reasons”: see Federal Court Rules O 52 r 15(1) and (2). 

2                     The affidavit of the applicant discloses that he took all steps that he could be expected to pursue his appeal rights but failed to do so through no fault of his own.  He says that he obtained the judge's decision on 4 May and on that day phoned the Asylum Seeker Resource Centre (the Centre) for help.  They asked him to speak with a legal officer in the community legal service, which he did.  The legal officer dealing with asylum seeker matters was unavailable and the applicant was asked to telephone back in two days time.

3                     On Thursday, 6 May he telephoned the Centre again and spoke with a gentleman who said they were unable to help him.  He was asked to telephone them on Monday, 10 May, giving them time to find an organisation that would help him.  On 10 May he telephoned the Centre and was instructed to contact three organisations: the Public Interest Law Clearing House, Victorian Bar Legal Assistance Scheme and the Law Institute of Victoria Legal Assistance Scheme.

4                     I infer that he approached the Victorian Bar Legal Assistance Scheme (the Scheme) because he said they requested him to submit as soon as possible the decisions of department, the Tribunal decision and the Federal Court for evaluation.  He did so immediately by faxing those documents to them.  They said they would post an application form to him immediately and that he should complete it and send it by return post.  He received the application form on 11 May, completed it and personally took it to the offices of the scheme and handed it over on the next day, Wednesday, 12 May. 

5                     On Friday, 14 May he telephoned the Scheme to find out what was happening.  They told him that part of the faxed document had not been received by them and asked him to re‑fax it.  He did this immediately. 

6                     On Tuesday, 18 May he contacted the Scheme again to enquire as to the progress of his matter and was told that the person who was attending to his matter was not present and that also they could not find the documents as they seemed to have been misplaced.  They asked him to send them a complete set of new documents.

7                     On Wednesday, 19 May he personally handed over a complete set of documents to a woman working at the Scheme’s office. 

8                     On Friday, 21 May somebody from the Scheme telephoned him to say that they had handed over the matter to a barrister. 

9                     On Tuesday, 25 May he received a telephone call from the Scheme stating that a barrister was not able to represent him.  He immediately telephoned the Centre and told them what had taken place.  He was told to come in on Wednesday, 26 May after 6.30 pm as he would be able to meet with the legal service only at that time.  He was asked to send three sets of forms:  a form 55, an extension of time for leave to appeal and leave to appeal to the Court. 

10                  On Thursday, 27 May he collected three sets of documents from the Federal Court Registrar, took them to the Centre where they helped him complete the documents. 

11                  On the same day, Thursday, 27 May, he lodged the documents with the Registrar of the Federal Court and personally handed the copies stamped by the Court to the Government Solicitor. 

12                  As to the merits of his appeal the applicant was assisted by a friend, Mr Buultjens, who drew my attention to two aspects of his Honour's judgment in par 5 where his Honour dealing with the Tribunal decision said:

“The first principal complaint is that the tribunal failed to take into account that the rebel movement had persecuted service personnel and their families.  The prosecutor’s stepbrother, a policeman, had feared for his safety during the insurrection and, with his family, had gone into hiding.  The prosecutor says that the tribunal incorrectly stated that it was the prosecutor’s brother-in-law (not his stepbrother) who had taken these steps to avoid persecution.  Even though the tribunal made this mistake, the mistake was not material to its decision.”

Mr Buultjens also referred to par 12 of his Honour’s judgment as follows:

“There is, however, one aspect of the tribunal’s reasons which does not cause me concern.  It relates to the tribunal’s finding that it was unlikely that the prosecutor and his father were able to pass themselves off as Burghers to obtain employment in a private school without having to produce their birth certificates which stated they were Tamils.  The tribunal said that it was ‘implausible’ that the prosecutor and his father could establish their ‘bona fides and identity without producing documents that would disclose their race’.  It concluded that  ‘[d]espite [the prosecutor’s] claim that his birth certificate states he is a Tamil, he has been able to find employment when that has become necessary’.  I have considered the transcript of the hearing before the tribunal and I am of the tentative view that the tribunal may have misled the prosecutor into thinking it had accepted his claim that he was only able to obtain employment at a private school by concealing his Tamil heritage.  In other words, the tribunal seemed to accept that the prosecutor’s birth certificate had impaired his employment opportunities.  This is in contrast to its finding that the prosecutor was able to obtain employment despite his birth certificate stating he was Tamil.  While this is not a mater about which the prosecutor has complained, that does not prevent me from giving it consideration.  In the end, whilst the point is a troubling one, even if the tribunal did act unfairly (as I suspect it did) it is not an error which would have affected the outcome having regard to the other findings made by the tribunal.”

13                  “Special reasons” of necessity is an expression which cannot be comprehensively defined, other than to say perhaps it is intended to distinguish the case from the usual course, according to which the time is 21 days:  Jess v Scott (1986) 12 FCR 187 at 195.

14                  The Full Court in that case went on to say:

“But [the expression] may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case.  Such a ground is a special reason because it takes the case out of the ordinary.”

15                  In Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627, Mansfield J granted leave as he found there were “special reasons” for doing so, even though his Honour thought the applicant in that case had no prospect of succeeding on any appeal par  [15]. 

16                  It seems in the present case there are some arguable grounds of appeal.  It may be that the judge below did not give sufficient attention to the aspect of apprehended persecution in which the asylum seeker is forced to so conduct himself as to avoid harm (see generally Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71). 

17                  This ground perhaps tends to be related to the matter in [12] already quoted where his Honour expresses some concern as to the possible misleading of the applicant as to the view the Tribunal took in relation to steps he and his father took to conceal their Burgher identity. 

18                  The lapse in time following the expiration of the appeal is no more than two days.  It is now established that an appeal lies as of right from cases like the present one:  S261/2004 v Refugee Review Tribunal [2004] FCAFC 1 50. 

19                  What does strike me as “special” in this case is the way in which the applicant was treated by the bodies who were held out as offering help for people in his position.  I do not mean to be critical at all of legal volunteers, who do a great deal of excellent work for the benefit of litigants and the Courts, but the fact remains that in this case there was mismanagement which severely prejudiced the applicant through no fault of his own.

20                  From what I have seen at the moment I do not regard the grounds of appeal as strongly arguable.  But an argument does exist.  The delay is short and the reasons for that delay persuade me in all the circumstances that leave ought to be granted. 

21                  I propose to grant a pro bono certificate. The certificate will extend to preparing a notice of appeal and appearing on the appeal if counsel deems representation appropriate.  I direct that the applicant have leave to file and serve a notice of appeal by 12 July 2004. 

Associate:

Dated:              21 June 2004