FEDERAL COURT OF AUSTRALIA

Ajok v Minister for Immigration and Citizenship [2010] FCA 633

THE COURT:

1.                  ORDERS that the Application made by the applicant for an order extending the time within which she might file a Notice of Appeal from the judgment of Smith FM delivered on 5 May 2010 (Ajok v Minister for Immigration [2010] FMCA 331) be dismissed.

2.                  NOTES that the respondent does not seek an Order for costs.

3.                  ORDERS that the proceeding be listed for publication of Reasons on Monday 21 June 2010 at 10.15 am.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                     On 17 June 2010, I dismissed the applicant’s Application for an extension of time within which to file and serve a Notice of Appeal from the judgment of Smith FM given on 5 May 2010 (Ajok v Minister for Immigration [2010] FMCA 331).  The applicant appeared before me on that day via telephone with the assistance of an interpreter.  When I dismissed the applicant’s Application, I indicated to the parties that I would publish reasons for that dismissal.  These are those Reasons. 

The Decision of the Federal Magistrate

2                     The case which the applicant sought to present to the Federal Magistrate was and still is far from clear.  The causes of action relied upon were and are obscure.  The Federal Magistrate did his best to outline the circumstances in which the case was brought and to describe the way in which the case was put.  At [1]–[12] of his Reasons for Judgment, the Federal Magistrate said:

1.         This application was filed on 12 February 2010.  In it Ms Ajok seeks relief in relation to actions of the Minister for Immigration and Citizenship and officers of his Department.  Although Ms Ajok has concerns about the actions of other people, she has not made them respondents to the present court case. 

2.         Her central concerns relate to the documents which facilitated her travel to Australia in 2002.  She was, in July 2002, given approval to travel and enter Australia with her four children on a humanitarian visa issued in response to an application made while she was in the Kakuma Refugee Camp in Africa.  Her application was processed by the Australian High Commission in Nairobi.  Following a favourable visa decision, the High Commission issued a single document entitled “Document for travel to Australia”, which covered Ms Ajok and her four children.  They were identified on the document with their personal details and photographs.  It was stamped at its bottom with the visa allowing entry to Australia of all five people.  The document stated: “this document is good for single travel to Australia only”. 

3.         Ms Ajok was also given a single page document issued by the United Nations High Commissioner for Refugees.  This also attached the personal details and photographs of Ms Ajok and her four children.  It certified that they were registered as refugees.  It referred to their travel for resettlement to Australia, and requested that assistance be given “in accordance with travel authorisation issued by the District Officer Kakuma”.  That document also stated on its face that it had limited validity from 27 August to 7 September 2002. 

4.         Copies of these two travel documents are currently found on a file in the possession of the Department of Immigration, but searches for the originals have not revealed their presence in any of the records of the Department.  The file shows that Ms Ajok and her four children did travel to Australia by air, and arrived in September 2002 in Sydney on a flight via Johannesburg.  On the day after their arrival, they were flown to Wagga Wagga.  Reference is made in the documents to their travel being assisted by an agency known as the “International Organisation for Migration (IOM)”, which is not an agency of any Australian government, but appears to be an international organisation engaged in assisting the travel of refugees. 

5.         Ms Ajok tells me that on arrival in Sydney, the originals of her travel documents were taken into their possession by one of the people who met her family, and that these people included at least one officer from the Department of Immigration, one officer from the IOM, and also other people in community organisations which were involved in assisting the family’s resettlement in Wagga Wagga.  Her present efforts, of which this application is one example, are directed at discovering and recovering the original travel documents. 

6.         Unfortunately, it seems that resettlement of the family has not been an easy process.  Their history since 2002 is only glimpsed in the documents before me, but these suggest that difficulties were encountered by Ms Ajok in Wagga Wagga, and then in Brisbane, and then in Sydney where she now lives.  This has led to the intervention of child care agencies and other people, in circumstances which are not shown in the evidence. 

7.         Ms Ajok is now firmly convinced that the originals of the family’s travel documents are still in existence and are being misused.  She thinks that they were misused by people who have been responsible for her losing care of her children, and that they are also being used fraudulently by other people in relation to immigration matters. 

8.         I accept that she has a firm belief about these matters, although she has not presented any evidence to give them substance.  As I shall explain, it is not the task of the Court in the present proceedings to investigate the loss of the documents for itself.  Her belief does, however, explain her efforts over very many years shown in the documents before me, to track down the originals of her travel documents. 

9.         Before filing her present application, Ms Ajok raised her broad concerns in proceedings commenced in the District Court of New South Wales.  It was to that Court that she appears first to have presented a letter she wrote dated 22 July 2009, addressed “To the Federal Court of Australia”.  It appears to raise concerns about the actions of two people who had been involved in her life in 2004 and 2007, and are unrelated to the Minister for Immigration and his Department.  Her concerns were addressed by Gibson DCJ in a judgment published as Ajok v Mares [2010] NSWDC 62.  Her letter is extracted in that judgment, and I shall not repeat its contents.  Her Honour was not able to find a cause of action which could continue in that court. 

10.       Ms Ajok’s present application was supported by the same letter, however, it identifies the Minister of Immigration and his Department as its respondents.  Ms Ajok used the form of application in relation to this Court’s general federal law jurisdictions, and completed it as follows: 

Final orders sought by applicant/s (state precisely each order sought by way of final relief) 

1.         I need Immigration and IOM to return my children special documents passport and visas of the United Nation Geneva. 

2.         I need my children to be return in my care from DOCS. 

3.         I need Court to investigate privacy policy between DIAC, DOCS, Doctor Sarah Meras regarding the Reference No xxxxxxxxx xx in Commonwealth Bank. 

Grounds of application (state briefly the grounds of the application) 

1.         My documents and my children’s documents were taken by Immigration and IOM Agency at the Sydney International Customs clearance section at the airport and not return me.  After clearance.  Passport (Green, blue, red) passport & visa. 

2.         Due to the above problems my children and I are suffering in Australia community. 

Interlocutory, interim or procedural orders sought by applicant/s (complete only if interlocutory, interim or procedural orders are sought)  

1.         I needs children’s to return to me in my carer their mother. 

2.         I need all my children’s documents and my documents to be return to me for my children’s and the family. 

3.         I needs my children’s and family power to be return to me in my responsibility both financially and wealth of my children and my family at large. 

11.       In support of the application, Ms Ajok has presented numerous documents concerning her efforts to have her travel documents traced and her other concerns.  These include correspondence relating to her applications to the Department of Immigration under the Freedom of Information Act 1982 (Cth).  The Court has also been assisted by the solicitor for the Minister, by being presented with additional correspondence concerning Ms Ajok’s freedom of information requests. 

12.       The correspondence shows that requests for access to her files overseas and in Australia were first made in 2003, and that Ms Ajok was given access at that time to almost the whole of a file received from Nairobi.  One page referring to the personal details of other people was withheld in part.  Ms Ajok made further requests in 2005, and in 2008 she made a request for the amendment of her records. 

3                     After referring to the matters extracted at [2] above, the Federal Magistrate noted that the applicant did not appear to have any current concerns about amendment of her records.  He then referred to the Freedom of Information request made by a solicitor on behalf of the applicant.  At [14]–[15] of his Reasons, the Federal Magistrate said: 

14.       A decision was made on that request by the FOI case officer in the Department of Immigration office at Parramatta.  In effect, she again released to Ms Ajok all the documents which had previously been located and released to her in 2003.  In relation to the originals of her travel documents, the case officer said: 

Document cannot be found 

24A      Requests may be refused if documents cannot be found or do not exist. 

An agency or Minister may refuse a request for access to a document if: 

(a)        all reasonable steps have been taken to find the document; and

(b)        the agency or Minister is satisfied that the document: 

(i)         is in the agency’s or Minister’s possession but cannot be found; or

(ii)        does not exist. 

Section 24A of the FOI Act provides that access to documents may be refused if the documents cannot be found. 

You have requested access to the original UN Travel document.  Searches have been undertaken to find the document in question.  These included: 

-           System searches of Integrated Client Services Environment (ICSE) for relevant record 

-           System searches of TRIM Record keeping for relevant record 

-           Checks with Airport Sydney 

Sydney Airport was contacted on 10th November 2009 in relation to document in question.  I received a reply from them on the same day that despite all the searches undertaken the documents or any file relating to the document in question could not be found. 

Despite all the above searches the original or copy of the UN Travel document could not be found.  I have concluded that the document to which you are seeking access is not in the possession of the department. Thus I am refusing the documents under Section 24A(b)(i) (the document cannot be found). 

I am satisfied that all reasonable steps have been taken to locate your record and documents but that it cannot be located in the department at this time.  On that basis I am refusing you access to the documents under Section 24A of the FOI Act. 

15.       Copies of the documents which were released to Ms Ajok are now all before the Court.  Also before the Court is the last document on the Department’s file, which is a note of a conversation between the freedom of information officer and Ms Ajok on 23 December 2009.  This refers to a “long conversation with the client”, in which the freedom of information officer said she explained her position in detail.  Ms Ajok is noted as saying that “she understood and did not have further questions in regards to the FOI decision”.  

4                     At [17]–[20], the Federal Magistrate discussed in general terms the avenues that were open to the applicant to seek a further right of review of her Freedom of Information request.  At [17], he noted that the Federal Magistrates Court did not have a general power to exercise powers under the Freedom of Information Act 1982 (Cth).  At [18], the Federal Magistrate held that the jurisdiction of the Federal Magistrates Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth) was generally only exercised after an applicant has exhausted all of his or her rights of administrative review pursuant in the Administrative Appeals Tribunal.  At [18], the Federal Magistrate said:

The Court normally refuses to become involved in a matter where alternative rights of merits review by an independent administrative tribunal have not been pursued.  It is given a specific discretion to take that factor into account (see s.10(2)(b)(ii) and compare McGowan v Migration Agents Registration Authority (2003) 129 FCR 118 at [77]).

5                     At [21], the Federal Magistrate said: 

21.       I am prepared to read her application broadly as invoking the AD(JR) jurisdiction and inviting the Court to extend time, if that were necessary.  However, on the material shown to me by Ms Ajok, I am not persuaded that I should extend time to exercise the AD(JR) jurisdiction in relation to any of the previous actions of the Department of Immigration or its offices under the FOI Act.  This is because I am unable to identify any arguable legal or other error which could provide grounds for an order of the Court of the sort which Ms Ajok is seeking.  Moreover, I consider on the material before me that the application would be doomed to failure, because of the likelihood that the Court would exercise its discretion under s.10(2). 

6                     At [22], the Federal Magistrate said:

22.       I can identify no other jurisdiction in the Court’s general federal law jurisdictions which could provide any better or other remedy than the AD(JR) Act.  I can identify in the material presented by Ms Ajok no proper basis for the Court ordering additional discovery by the Minister or his Department, nor for ordering the discovery of documents by any other person or agency in support of her present application. 

7                     At [25]–[30], the Federal Magistrate dealt with the applicant’s claim in respect of the Commonwealth Bank account and for the return of her children.

Decision and Consideration

8                     The Application before me was filed on 28 May 2010.  It was, therefore, filed two days outside the time limited by the Federal Court Rules for the filing of an appeal from a Federal Magistrate. 

9                     The relevant part of the Rules of Court is O 52 r 15 which is in the following terms:

15        Time for filing and serving notice of appeal

(1)        The notice of appeal shall be filed and served:

(a)        within 21 days after:

(i)         the date when the judgment appealed from was pronounced;

(ii)        the date when leave to appeal was granted; or

(iii)       any later date fixed for that purpose by the court appealed from; or

(b)        within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

(2)        Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.

(3)        An application for leave under subrule (2) must:

(a)        be in accordance with Form 54A; and

(b)        include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing; and

(c)        be accompanied by an affidavit setting out:

(i)         the nature of the matter; and

(ii)        the factual and legal issues in dispute; and

(iii)       the reasons why leave should be given.

(4)        If a respondent objects to an application being dealt with without an oral hearing, the respondent must:

(a)        file a notice to this effect; and

(b)        serve a copy of the notice on each other party to the application.

10                  The applicant in the present case must satisfy subrule (2) and subrule (3) of O 52 r 15.  The Full Court has held that a special reason within the meaning of O 15 r 15(2) of the Federal Court Rules is a circumstance which takes the case out of the ordinary run of cases in which an appeal should be filed within 21 days (Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at [5] per Jessup J, with whom Gyles and Besanko JJ agreed).

11                  In Jess v Scott (1986) 12 FCR 187 at 195, the Full Court said:

It is useful to consider the meaning and application of r 15(2) against a background of an understanding of how other courts have applied corresponding rules. But in the end, this Court must construe and apply the terms of its own rule. The question is what that rule means, and how it is to be applied to the circumstances of the case.

It is clear that the rule reflects the same general structure exemplified by the various decisions we have discussed -- the provision of a time for lodgment of an appeal, but the provision also of a discretion to permit an appeal out of time where it is shown that the circumstances warrant the exercise of that discretion. As Lord Guest, speaking for the Privy Council, put it 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 on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.”

What is needed to justify an extension of time is indicated in r 15(2) by the words “for special reasons”. It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it 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. We do not think the use of the expression “for special reasons” implies something narrower than this.

The proposition cannot be accepted that r 15(2) was intended to constrict the broad measure of justice for the individual case which the Court could award upon the principle of Gatti v Shoosmith. No return was contemplated to the old law by which the discretion of the Court to waive the rules was itself fettered by further rules. We agree with the dictum of Davies J cited earlier in these reasons, and we think the construction of the rule we have adopted is in line with the decisions in Ex parte Mehta, the Palata Investments case and Avery’s case.

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.

12                  In Parker v The Queen [2002] FCAFC 133 at [6], the Full Court said:

6          In the civil jurisdiction, Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when considering an application for leave to extend the time within which to file a notice of appeal:  see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth).  The matters which attracted his Honour’s attention were set out at 348–349:

1.         applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.  The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;

2.         action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

3.         any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

4.         however, the mere absence of prejudice is not enough to justify the grant of an extension; and

5.         the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

13                  As I said in SZMFI v Minister for Immigration and Citizenship [2010] FCA 386 at [30]:

30        In matters such as the present, it will usually also be relevant for the Court to consider the importance of the issues raised in the proposed Notice of Appeal and the bona fides of the appeal. 

14                  The delay in the present case is insignificant. 

15                  As the authorities make clear, I am obliged to consider the strength and bona fides of the appeal which will be filed should the applicant’s Application for an extension of time be granted.

16                  The draft Notice of Appeal attached to the applicant’s affidavit filed in support of her Application addresses two matters.  The first is a claim by the applicant for the return of certain travel documents.  The second is a claim for restoration of custody of her four children.  The grounds set out in the draft Notice of Appeal do no more than advance these claims. 

17                  The draft Notice of Appeal fails to identify any error on the part of the Federal Magistrate nor does it raise any arguable ground of appeal from the Federal Magistrate’s decision.  I should add that, having carefully reviewed the Court record maintained by the Federal Magistrates Court, I can find no arguable claim which could have properly been advanced in the Federal Magistrates Court or which can now be properly advanced in this Court. 

18                  The Federal Magistrate did his best to articulate conceivable causes of action which the applicant might have had in respect of the complaints which she made in the Application which she filed in the Federal Magistrates Court.  Having done his best to articulate such claims, the Federal Magistrate found that none of them could succeed.

19                  There is no error in the approach adopted by the Federal Magistrate nor in the decision which he made.

20                  For these reasons, I dismissed the applicant’s Application for an extension of time. 

21                  The respondent did not seek an order for costs.  Accordingly, I made no order for costs. 

Associate:

Dated:         21 June 2010