FEDERAL COURT OF AUSTRALIA

NATP v Minister for Immigration & Multicultural Affairs and Refugee Review Tribunal [2006] FCA 1577

 MIGRATION – no point of principle 

NATP v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1360 OF 2006

TRACEY J

14 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for extension of time within which to file and serve a notice of appeal be dismissed with costs.

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 extension of time to file and serve a notice of appeal from orders made by a judge of this Court on 4 February 2004.  The application before the primary judge sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 23 May 2003 and handed down on 19 June 2003.  The Tribunal had rejected her application for a protection visa.

2                     The applicant filed her application for an extension of time on 14 July 2006, almost three years after the decision of the Tribunal was made.  In the affidavit attached to the application, the applicant stated that her migration agent did not notify her of the decision and that she had only received a copy of the judgment on 10 July 2006.  The applicant also stated in the affidavit that the migration agent did not properly handle her request for a business visa rather than a protection visa.

3                     In oral evidence given at the hearing the applicant confirmed that at all relevant times it was her wish to obtain a business visa. She at no time wished to obtain a protection visa. The application which she had made for a protection visa was supported by statements of fact relating to her involvement with Falun Gong which were not true. She did not tell the Refugee Review Tribunal that those statements were untrue. She did not tell Beaumont J who heard and dealt with her application to review the Tribunal’s decision. Despite this, she annexed to her affidavit a draft notice of appeal to a Full Court of this Court. The grounds appearing in that draft notice of appeal included allegations that the Tribunal had denied her procedural fairness by relying on information adverse to her without giving her an opportunity to comment on that information.  Some, at least, of that information had been provided by her.

4                     I find it extremely hard to understand how she could seriously assert as a ground of appeal that the Tribunal had relied on evidence which she now tells the Court was not true. The notice of appeal also contains grounds alleging that the Tribunal ignored some of the claims in the statement attached to her application which she now says were untrue.

5                     When an applicant applies to the Court for leave to lodge a notice of appeal out of time it is necessary for the applicant to establish that the reasons for appealing out of time are special reasons. Applications for an extension of time are not granted unless there is a proper reason to do so. In circumstances such as the present, there can, in my opinion, be no proper reason for enlarging time. This is because, as I explained to the applicant, his Honour Beaumont J had found that the Tribunal had made no legal error when it determined that she was not entitled to a protection visa.  Her evidence this afternoon establishes that not only was there no legal error, there was no factual error either, on the part of the Tribunal.  It would be an act of futility for the applicant to pursue an appeal against a decision which affirmed a decision that she was not entitled to a protection visa in circumstances in which she asserts that she never wanted or sought such a visa.

6                     Another factor that is brought into account when applications such as the present are made is whether an acceptable explanation for the delay has been provided. I do not accept that an adequate or acceptable explanation for the two and a half years delay has been provided to the Court. The applicant was present in Court when his Honour delivered reasons on 4 February 2004. She had the assistance of an interpreter. She would therefore have been aware that his Honour had refused her application for judicial review. Yet, in her affidavit, she lays the blame for her being unaware of the Court’s decision on her former migration agent. That agent was not present in Court when his Honour’s reasons were delivered. There was, therefore, no reason why the applicant would expect to be informed about the Court’s reasons by the migration agent.

7                     The application will therefore be dismissed with costs.

Associate:

Dated:         14 November 2006