FEDERAL COURT OF AUSTRALIA

Kuruwitage v Minister for Immigration and Citizenship [2007] FCA 795

Kuruwitage v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND MIGRATION REVIEW TRIBUNAL

VID 212 OF 2007

MIDDLETON J

21 mAY 2007

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application for leave to file and serve out of time be dismissed.

2.                  The applicant pay the first respondent’s costs of the proceeding.

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 leave to file and serve out of time an appeal from a judgment of a federal magistrate dated 19 February 2007: Kuruwitage v Minister for Immigration & Anor [2007] FMCA 185.  In his decision, the federal magistrate dismissed an application to have an application for review dismissed under r 13.03A of the Federal Magistrate Court Rules 2001 (Cth). 

PROCEDURAL BACKGROUND

2                     The applicant is a citizen of Sri Lanka who first entered Australia on 17 June 1996.  On 1 August 1997 the applicant applied for a Sri Lankan (Temporary) (Class TT) subclass 435 visa, which was refused by a delegate of the first respondent on 7 August 1997.  The second respondent (‘the Tribunal’) affirmed the decision of the delegate on 30 October 2006, noting that, in accordance with cl 435.213 of Sch 2 to the Migration Regulations 1994 (Cth) (‘the Regulations’), it was a condition of the relevant visa that the applicant had entered Australia on or before 1 November 1993 as the holder of an entry permit or its equivalent.

3                     The applicant applied to the Federal Magistrates Court for review of the delegate’s decision, but failed to attend the scheduled hearing on 31 January 2007.  The matter was subsequently dismissed pursuant to r 13.03A of the Federal Magistrates Court Rules 2001 (Cth).

4                     Subsequently, on 7 February 2007, the applicant filed an application with the Federal Magistrates Court for reinstatement together with an affidavit in support.  In his affidavit, the applicant claimed that he had not been aware the matter had been given a first court date, and furthermore, he stated he had been away on holidays when the matter was listed, and only became aware of the hearing date when he returned home.  The learned federal magistrate correctly stated that it is for the Court to determine whether, on the material before it, an applicant has provided a reasonable explanation for non-attendance at Court, and found, in the circumstances, that there was no reasonable excuse for the applicant’s non-attendance on 31 January 2007. 

5                     His Honour also went on to consider whether the applicant had an arguable case, and concluded that the applicant did not have an arguable case that would support reinstatement of the application.  In reaching this conclusion, his Honour noted that the requirements for the relevant visa contained in the now-repealed cl 435.213 clearly stated that a successful applicant must have entered Australia on or before 1 November 1993.  As the applicant did not arrive in Australia until 17 June 1996, he therefore did not meet this requirement, and the federal magistrate found that the Tribunal had acted appropriately by dismissing the matter and affirming the delegate’s decision.

APPLICATION FOR LEAVE TO FIIE AND  SERVE OUT OF TIME

6                     The application for an extension of time within which to file and serve a notice of appeal, filed by the applicant on 16 March 2007, contains an attached affidavit in which the applicant asserts that he was misinformed by his migration advisor as to the timeframe for lodging an appeal.

7                     In a draft notice of appeal filed by the applicant, the following three grounds are claimed:

a.                  The decision of the Tribunal was made without jurisdiction or is affected by an error of jurisdiction;

b.                  The decision of the Tribunal being affected by jurisdictional error is not a decision to which section 474 of the Migration Act as amended applies.

c.                  The decision was a denial of procedural fairness and natural justice.

8                     Rule 52.15(1) of the Federal Court Rules (Cth) (‘the Rules’) provides that a notice of appeal shall be filed and served within 21 days after the date when the judgment appealed from was pronounced.  In this matter, the judgement being appealed from was made on 19 February 2007.  Therefore, the applicant was required to file and serve the notice of appeal by 12 March 2007.  However, as the applicant did not meet this requirement, he has brought an application under r 52.15(2) of the Rules for leave to file and serve out of time.  Rule 52.15(2) provides that notwithstanding anything in that rule, the Court “for special reasons” may at any time give leave to file and serve a notice of appeal.

9                     In determining whether “special reasons” exist, something out of the ordinary is required: see Jess v Scott (1986) 12 FCR 187 at 195.  The guiding principles are set out in Hunter Valley Development Pty Ltd v Cohen (1984) 3 FCR 355 at 348 to 349, and include a requirement that there be some acceptable explanation for the delay, and require the merits of the substantial application to be taken into account.  Furthermore, even where there are special reasons why the appeal should be permitted to proceed, the Court has the discretion to grant or refuse the extension of time sought.  The factors to be taken into account were set out in Australian Prudential Regulation Authority v Holloway (2001) 48 ATR 59 and relevantly include:

1.                  the importance of the question sought to be raised by the proposed appeal;

2.                  the bona fides of the proposed appeal;

3.                  the prima facie strength of the proposed ground of appeal; and

4.                  the explanation for the delay. 

10                  I note that the first respondent does not challenge the applicant’s explanation for the delay.  However, it does not follow that leave ought be granted to the applicant.  Instead, the Court is required, in the exercise of its discretion, to consider the merits of the substantial application.

11                  In the circumstances of this case, I can find no error in the federal magistrate’s decision.  His Honour’s conclusion was open to him on the evidence and he properly applied the law.  The question arose as to when the applicant entered Australia.  As the applicant did not arrive in Australia until 17 June 1996, he did not meet the requirements of the relevant clause and hence his Honour’s conclusion was inevitable.  It follows that any other circumstances relating to the applicant do not matter, given this particular criterion is not met.  Therefore, I can find no proper basis upon which the proposed appeal could succeed and I would therefore not grant leave to the applicant as there would be no utility in doing so.

12                  Accordingly I will order that the application for leave to file and serve out of time should be dismissed, and the applicant pay the first respondent’s costs of the proceeding.

Associate:

Dated:         23 May 2007