Applicant VAAU of 2001 v Minister for Immigration, Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant seeks an extension of time to appeal against a decision of Finkelstein J given on 21 January 2003. Under O 52 r 15 of the Federal Court Rules a notice of appeal is to be filed within 21 days after the judgment of appeal was pronounced. However by subrule (2) the Court or a judge for special reasons may at any time give leave to file and serve the notice of appeal. 2 The principles on which this discretion is to be exercised are not in doubt: see Hunter Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 and Parker v The Queen [2002] FCAFC 133. In particular, the merits and prospects of success of the proposed appeal are relevant: Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VR 257 at 263-264. 3 The applicant is a Tamil from Sri Lanka. He sought a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act) and thus had to satisfy the criteria for that visa stipulated by s 36. He sought from this Court review of a decision of the Refugee Review Tribunal, which affirmed a decision of a delegate of the Minister refusing the grant of the visa. The case that he put to the Tribunal is summarised in his Honour's judgment, VAAU of 2001 v Minister for Immigration and Multicultural Affairs [2003] FCA 15 at [3]. 4 In essence, the applicant's case involved two occasions - one in 1994 and the other in 1998 - when he was detained by the authorities who were said to have suspected him of being a member or supporter of the Liberation Tigers of Tamil Eelam. 5 In an affidavit sworn 25 February 2003 the applicant explains the reasons for his failure to lodge an appeal within time. These were partly due to his lack of familiarity with the English language and partly for lack of funds. In the event his solicitor on 26 February lodged an application for extension and a proposed notice of appeal without requiring any payment. 6 The time for appeal had expired on 11 February. Thus the time that elapsed before he brought the application is relatively short and there is a plausible explanation advanced for it. No prejudice has been shown on the part of the Minister. The real problem, however, is whether there are any merits shown for the prospective appeal. The only grounds stated in the proposed notice of appeal are as follows: "The Learned Primary Judge held that as the Tribunal, in his view, has not erred in law in any respect, it was not necessary to discuss the effect of the issues arising from s 474 of the Migration Act 1958 (Cth) canvassed at the hearing." 7 As far as it goes, that is a correct description of the judgment. His Honour did indeed review the arguments advanced by counsel in appearing on behalf of the applicant and concluded (at [15]): "In virtue of my finding that the Tribunal had not in any respect erred in law it has been unnecessary for me to discuss the effect of s 474 of the Migration Act (1958) (Cth), an issue which occupied a substantial amount of time at the hearing of this matter." 8 Thus the subsequent decision of the High Court in S157 of 2002 v Commonwealth of Australia (2003) 195 ALR 24, which was handed down on 4 February 2003, does not affect the correctness of his Honour's decision. 9 Obviously enough, the grounds as stated in the proposed notice of appeal do not assert any error. On the hearing of this application, counsel for the applicant referred to two passages in the judgment in respect of which he said the applicant wished to "ventilate questions of law" before the Full Court. The first of these was at [12] of the judgment, where his Honour said: "Next there was an attempt to show that the Tribunal erred in law when it failed to find that the treatment accorded to the applicant constituted 'persecution' for the purposes of the definition of 'refugee' in the Convention. I reject this submission. First, it seems to proceed on the unwarranted assumption that the Tribunal had accepted the applicant's account of events when that is not what the Tribunal did. Second, whether or not particular conduct is persecutory is often a matter of degree which, on review, is for the Tribunal to judge. Speaking generally, therefore, there would be no error of law in the Tribunal's finding on such a question, unless its finding was patently unreasonable in view of the facts as found. This is not one of those cases." The second is to be found at [14] where his Honour said: "Accordingly, I am of the opinion that there are no reviewable errors in the Tribunal's reasons. Even if there were, there is a complete answer to the applicant's case. In its reasons the Tribunal said that it was satisfied that the applicant could relocate to another part of Sri Lanka where the likelihood that he would be persecuted for a Convention reason is insubstantial. In that regard the Tribunal applied the so called 'relocation principle' as discussed in cases such as Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. Although this finding was also challenged on the basis that the Tribunal misunderstood the meaning of persecution when considering the 'relocation principal', there is nothing which indicates such an error." 10 It is not sufficient, in my opinion, for the purposes of showing arguable prospects of success on a proposed appeal, to merely identify questions of law. An applicant has to show at least that there is some possibility of the Full Court on appeal finding that the primary judge was in error. This has not been done in the present case. 11 As counsel for the Minister pointed out, it is open to the applicant to bring a further application of extension of time if he is able to point out error. 12 I think dismissing the present application and leaving that possibility open is a more appropriate exercise of the discretion. On well-established principles, I am not satisfied that the applicant has made out a case for leave and it would be wrong to adjourn the matter indefinitely on the speculative basis that the applicant may be able to produce some demonstrable argument of going to the merits of the appeal. Therefore, I dismiss the application. The applicant must pay the Minister's costs.