NBJL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 113 (21 February 2005)

Last Updated: 24 February 2005

FEDERAL COURT OF AUSTRALIA

NBJL v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 113

MIGRATION – application for leave for extension of time to file and serve notice of appeal – substantial injustice to other party – application refused



Federal Court Rules 1976 (Cth) O 52 r 15


Howard v Australian Electoral Commission [2000] FCA 1767 ref’d to
WAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 399 ref’d to























NBJL V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 1589 OF 2004

CONTI J
21 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	1589 OF 2004

BETWEEN:	NBJL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	CONTI J
DATE OF ORDER:	21 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.	The application for leave to extend the time to file and serve the notice of appeal is refused.
2.	The applicant to pay the respondent’s costs.

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	1589 OF 2004

BETWEEN:	NBJL APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	CONTI J
DATE:	21 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for leave to file an appeal from the orders and reasons for judgment of Wilcox J made and given on 25 July 2000, whereby his Honour dismissed the appellant’s application purportedly brought pursuant to s 39B of the Judiciary Act 1903 (Cth) for review of the decision of the Refugee Review Tribunal (‘the Tribunal’) made on 23 March 2000. The Tribunal decision affirmed the decision of the Minister’s delegate made on 21 March 1998 not to grant the appellant a protection visa.

2 The applicant seeks leave to appeal from Wilcox J’s judgment delivered ex tempore on 25 July 2000. On that occasion the applicant did not attend court and his Honour upheld the submission of the respondent Department for dismissal of the application. The applicant had been forewarned by letter sent by solicitor for the respondent, Mr Markus, that should he not attend that hearing, the respondent would apply for dismissal of the proceeding. It would appear from the reasons of Wilcox J that the applicant did not appear on that day because he indicated to another solicitor for the respondent that he wanted an adjournment in order to obtain legal representation. Despite being informed that he would have to attend court in order to seek leave for such an adjournment, the applicant did not attend on that occasion and as I have said, Wilcox J dismissed his application and ordered that the respondent pay the Minister’s costs.

3 At the time that this decision was made, the relevant provisions of Order 52 r 15 of the Federal Court Rules 1976 (Cth), which deals with the time for filing and serving an appeal, was in the same terms as it is now. A notice of appeal must be filed and served within 21 days after the date when the judgment appealed from was pronounced (O 52 r 15(1)(a)(i)), or "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" (O 52 r 15(1)(b)). Order 52 r 15(2) enables the Court or any judge to give leave to file and serve a notice of appeal for "special reasons".

4 The requirement for "special reasons" has been considered by this Court on a number of occasions. Where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted: WAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 399 [7]. It must be borne in mind that the decision to give leave to file out of time is a discretionary one which may be informed by a number of factors in addition to the amount of time that has elapsed since the original judgment from which leave to appeal is sought. In Howard v Australian Electoral Commission [2000] FCA 1767, Branson J identified the importance of the question to be determined in the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed ground of appeal as relevant factors to take into account when exercising the discretion in the applicant’s favour.

5 I now have before me an affidavit which was filed by the applicant at the same time as his application to seek leave to file and serve a notice of appeal against the judgment of Wilcox J. Both of these documents were filed on 29 October 2004, some four years after the decision for which the applicant sought leave to appeal. Annexed to that affidavit (but not so marked) was a letter from the Department of Immigration and Multicultural Affairs dated 21 June 2001 which refers to a conversation held between the applicant and one Frances Read of the Australian Government Solicitor, solicitors for the respondent Department. The letter accepted an offer made by the applicant to repay the costs order made against him (which was an amount of $4,560) by $200 monthly instalments.

6 The explanation given by the applicant in his affidavit filed 29 October 2004 for his failure to lodge an appeal within the prescribed period is that at that time he was operating under the belief that he was not legally eligible to lodge an appeal until such time as he had repaid his costs. There is nothing in the affidavit to indicate the basis, or otherwise the source, of this belief. Furthermore, there is nothing in the letter dated 21 June 2001 from the Department to suggest that the Department (or their legal representatives) had advised the applicant in those terms– indeed, by the time that letter was sent (and the agreement as to the repayment of costs reached), the applicant had already exceeded the period prescribed for lodging an appeal in the Rules. I can only conclude that the applicant failed to make appropriate enquiries following Wilcox J’s decision as to his rights of appeal.

7 When I asked the applicant if he could provide any additional reasons for why I should grant him the leave sought, he attempted to reiterate the merits of his claim to hold refugee status under the Convention. Mr Markus, solicitor for the respondent, drew my attention to the conclusions of the Tribunal reached in relation to the applicant’s application for review of the Minister’s delegate’s decision to reject his application for a protection visa. The Tribunal member said of the applicant’s evidence namely that he was involved in pro-Kurdish groups, that he found "much of [it] ...vague and unconvincing". The Tribunal member further found:

"...the manner in which he provided his evidence and the changes which he made indicate to me that he was not being completely frank and I find it further indication that he is not a credible witness".

8 Finally, the time period between when the applicant arrived in Australia and when he sought a protection visa (some six years) provided a further indication that the applicant did not fear persecution in Turkey for a Convention reason.

9 I have also considered the draft notice of appeal that the applicant filed along with the notice of motion seeking leave to file and serve the appeal, and have come to the conclusion that the applicant has no prospects whatsoever of this appeal succeeding. The notice of appeal contains the following purported grounds of appeal:

"2. The Tribunal and DIMIA delegate exceeded its jurisdiction. They failed to understand my claims.
3. I will be at risk of suffering persecution within the meaning of the 1951 Convention relating to the status of refugees and the 1967 Protocol relating to the status of refugees.
4. The respondent refused to grant my protection visa application without any proper grounds and proper investigation.
5. Exceeded jurisdiction in arriving at the decision to affirm the respondent’s decision not to grant a visa in that it
(a) I was not accorded natural justice.
6. I believe the interpreter could not place my arguments properly to the member of RRT and couldn’t explain the questions to me."

10 When I asked the appellant to explain his reasons for each purported ground of appeal, he was not able to provide me with any relevant material to substantiate them. No mention is made as to why Wilcox J erred in law in dismissing his earlier application in the way that his Honour did.

11 In the interim period since Wilcox J’s decision, the applicant informed the Court that he lived in various parts of Sydney until he was placed into detention late last year at Villawood. There being nothing to explain the considerable delay in between Wilcox J’s decision and the applicant’s decision to seek leave to bring this appeal (over four years), nor, on the face of it, any prospect that the appeal, if brought, would raise an important question or indeed, have any prospect of succeeding, I must inevitably refuse to exercise my discretion in favour of granting leave to extend the period of time in which the applicant may file and serve a notice of appeal. The applicant’s inability to provide any ‘special reason’ for why he should be given leave leaves me to conclude that there is nothing within my power to alleviate his dilemma, without doing substantial injustice to the other party. If I may be excused for intruding outside of issues raised for my determination, I would be obliged if the Minister could be informed that the applicant presented to the Court as a straightforward, pleasant and industrious person, and perhaps the merits of his being able to remain in Australia under supervision for a period of time upon the basis of an appropriate visa might prove to be worthwhile.

12 The application for extension of time to file and serve the notice of appeal is refused. In addition, I order that the applicant pay the respondent’s costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate:

Dated: 21 February 2005

Applicant appeared in person
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 February 2005
Date of Judgment:	21 February 2005