A236 of 2002 v Minister for Immigration & Multicultural& Indigenous Affairs [2004] FCA 74 (6 February 2004)

Last Updated: 17 February 2004

FEDERAL COURT OF AUSTRALIA

A236 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 74

A236 of 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 2269 of 2003



WILCOX J
3 FEBRUARY 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2269 of 2003

BETWEEN:	A236 of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	3 FEBRUARY 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

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

2. The applicant, A236 of 2002, pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 2269 of 2003

BETWEEN:	A236 of 2002 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	3 FEBRUARY 2004
PLACE:	SYDNEY

REASONS FOR EX TEMPORE JUDGMENT

WILCOX J:

1 This is an application for an extension of time in which to appeal to a Full Court against a decision of Emmett J to refuse to set aside a dismissal order made pursuant to Order 10 rule 3(2) of the Federal Court Rules.

2 The application has a considerable history. It appears the applicant arrived in Australia in November 1998. On 26 November 1999, he applied for a protection visa. That application was refused by a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, on 30 March 2000.

3 On 9 May 2000, the applicant lodged an application with the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. In a decision dated 3 October 2001, the Tribunal affirmed the delegate’s decision not to grant a protection visa. There the matter rested for over 12 months. It appears no attempt was made to seek review of the Tribunal’s decision in this Court.

4 On 8 October 2002, the applicant filed a draft order nisi and supporting affidavit in the High Court of Australia. He sought prerogative relief in respect of the Tribunal’s decision. I understand the applicant was represented by an Adelaide lawyer at that time.

5 On 7 February 2003, Hayne J ordered that the matter be remitted to the Federal Court. It was remitted to the South Australia District Registry of this Court. From time to time during the period May to July 2003, the matter was listed before judges of the Court in Adelaide. On 18 July 2003, Selway J ordered that the matter be transferred to the New South Wales District Registry of the Court.

6 The matter came before Emmett J on 19 September 2003. There was no appearance by or on behalf of the applicant. Accordingly, his Honour ordered that the application be dismissed pursuant to Order 10 rule 3(2) of the Federal Court Rules.

7 Four days later, on 23 September 2003, the applicant filed a notice of motion seeking an order that the dismissal order be set aside. That motion came before Emmett J on 27 October 2003. As I understand the position, the applicant was not then legally represented. He informed Emmett J that he wished to get legal advice. Accordingly, his Honour adjourned the hearing of the motion and gave directions for the filing of any amended motion, submissions and an affidavit by the applicant personally deposing to an explanation for the delay in filing the proceedings in the High Court.

8 The applicant subsequently filed an affidavit. He also relied on previous submissions, filed in August, which were apparently prepared by a friend who is not a practising lawyer but has had some legal training.

9 When the matter came before Emmett J on 14 November 2003, his Honour considered whether there appeared to be any jurisdictional error in the decision of the Tribunal. Although the application for prerogative relief was well out of time, Emmett J preferred to consider whether the action had any significant prospect of success before concerning himself about the delay in bringing that application. After a lengthy and careful consideration of the Tribunal’s decision, Emmett J said at para 17:

‘I consider that there is no prospect on the material before me that the application could succeed if I were to accede to the application now made to set aside my earlier orders. Accordingly, I propose to dismiss the motions with costs.’

10 Emmett J gave oral reasons for judgment on 14 November 2003. It seems there was some delay in the reasons being typed up and made available to the parties in written form. The written reasons were certified by Emmett J’s associate on 10 December 2003. Copies were apparently posted to each of the parties on that day. It will be noted that the date of the certification is more than 21 days after the orders made by Emmett J.

11 In support of his application for extension of time to appeal, the applicant indicated that he thought he had 28 days in which to appeal. He also thought he could safely wait until he received the written reasons for judgment. Both these beliefs are incorrect, but I can understand the beliefs might genuinely have been held. Apparently realising that his belief about waiting for written reasons was incorrect, the applicant filed his application for extension of time on 9 December 2003. I am now obliged to determine that application.

12 Because of the view I have taken about the circumstances in which the applicant ran out of time to appeal, I have preferred initially to consider whether there is an arguable case to be put on the hearing of any appeal. If I could identify such a case, I would be disposed to extend time. However, I have been unable to detect any argument that the Tribunal’s decision involved jurisdictional error.

13 As I have indicated, Emmett J carefully considered the Tribunal’s decision. He could not find any jurisdictional error. The applicant has been unable to identify any error of law or procedure. He points out he is not a lawyer. I understand that. However, it appears he has had legal advice since he received the Tribunal’s decision.

14 Firstly, the applicant told me this morning that he was represented by a solicitor at the Tribunal hearing and the solicitor received a copy of the Tribunal’s reasons. Apparently, the solicitor advised him to make a fresh application, rather than to seek review of the Tribunal’s decision on the first application.

15 Secondly, as I have mentioned, the applicant was represented by an Adelaide lawyer at the time of filing his application in the High Court. The applicant apparently had confidence in that lawyer. He referred to him today as a ‘talented lawyer’. If the Adelaide lawyer had an arguable point he, unfortunately, did not disclose it, either to the applicant or the Court.

16 I note that, while the matter was still in the South Australia District Registry, there were outstanding directions for filing submissions. They might have been expected to reveal the applicant’s argument (if any). Unfortunately, no submissions were filed.

17 Even though the matter is now being dealt with in the New South Wales District Registry, and the applicant is in Sydney, there would appear to have been no reason why the applicant could not have obtained advice from the Adelaide lawyer in order to identify an arguable point. It is reasonable to expect that the applicant would have done this between that date and today. However, the applicant apparently has not sought any advice from any lawyer about the judgment of Emmett J.

18 The applicant asks me to adjourn the matter further, in order to enable him to find a lawyer and obtain some advice. I do not think that is an appropriate course. The applicant has had an ample opportunity to obtain advice as to whether there is any basis upon which he might hope to challenge the Tribunal’s decision. It is now over two years since the Tribunal’s decision was handed down. I do not think I would be justified in granting any further extension of time.

19 I see no reason to differ from the view expressed by Emmett J about the futility of this proceeding. It would not be a proper exercise of my discretion to extend time for an appeal which appears foredoomed to failure. Accordingly, I order that the application for extension of time to file and serve a notice of appeal be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 13 February 2004

The Applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	3 February 2004
Date of Judgment:	3 February 2004