NADI of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for an extension of time within which to file and serve a notice of appeal from a decision of Sackville J given on 23 May 2002. His Honour, on that day, dismissed the applicant's application for a review of a decision of the Refugee Review Tribunal ("the Tribunal") whereby the Tribunal affirmed a decision that the applicant not be granted a protection visa. 2 The applicant, who is a citizen of Bangladesh, arrived in Australia on a student visa. Some months later he applied for a protection visa. A delegate of the respondent refused to grant the visa and the applicant lodged an application for review of the delegate's decision by the Tribunal. 3 Although the applicant completed a form advising the Tribunal that he wished to give oral evidence, and that his adviser would accompany him, neither he nor his adviser appeared before the Tribunal on the appointed day. No explanation was provided at any time to the Tribunal for their non-appearance. The Tribunal proceeded to make a decision on the application without taking any further steps to contact the applicant (see s 426A of the Migration Act 1958 (Cth) ("the Act")). The applicant, on 21 May 2002, appeared before Sackville J on the hearing of his application to this Court, without legal or other representation, but with the assistance of a Bengali/English interpreter. I accept the affidavit evidence of Ms Bateup, who was in Court on that day as the respondent's instructing solicitor, that at the conclusion of the hearing his Honour said: "I will hand down judgment in this matter on 23 May 2002 at 9.30 am". 4 The applicant did not attend Court on 23 May 2002. He claims that he did not learn that his review had been finalised until he received a letter from the respondent's solicitors on 8 July 2002 which enclosed a sealed copy of the orders made by Sackville J. It may be that the applicant in fact received the letter from the respondent's solicitors on 18 July 2002; it is dated 15 July 2002. The date is not presently material. 5 I accept that the applicant took steps promptly after he received a copy of the orders made by Sackville J in an endeavour to institute an appeal from his Honour's decision. I am concerned about the applicant's failure either to come to the Court on 23 May, or to make any inquiries concerning his Honour's judgment, before he received the copy of the orders made by his Honour. I am suspicious that the applicant thought that it would be in his interest not to attend the Court or to make such inquiries. However, in the end nothing turns on whether this suspicion is well founded. 6 In the circumstances of this case the applicant must rely on the power of the Court under O 52 r 15(2) of the Federal Court Rules which provides that: "…the Court or a judge for special reasons may at any time give leave to file and serve a notice of appeal". Ordinarily a notice of appeal is required to be filed and served within 21 days after the day when the judgment appealed from was pronounced (O 52 r 15(1)(a)(i)). 7 In Jess v Scott (1986) 12 FCR 187 at 195 the Full Court stated: "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 this 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 … 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." 8 I am willing to proceed on the basis that the applicant did not understand the procedures of the Court. That is, relevantly, that he did not understand the necessity for him to attend Court on 23 May 2002 to collect the judgment or to take steps to obtain a copy of the judgment promptly if he wished to exercise his right of appeal. On this basis I conclude that this case is outside the ordinary such that the extension of time sought could be granted (Ariaee v Minister for Immigration & Multicultural Affairs [2001] FCA 1627 at [14] per Mansfield J). 9 Nonetheless, the grant of leave remains discretionary. In Howard v Australian Electoral Commission [2000] FCA 1767 at [7] I identified as factors to be taken into account in the exercise of this discretion the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal and the prima facie strength of the proposed appeal. If the proposed appeal has no real prospect of success an exercise of the discretion of the Court adverse to the applicant would be appropriate (Ariaee v Minister for Immigration & Multicultural Affairs at [12] and the cases there cited). 10 The applicant has identified no ground upon which it could be argued that his Honour's judgment is in error. The applicant has today indicated that he would like the hearing of this application again adjourned (the hearing has already been adjourned on one occasion at the applicant's request) so that he may seek legal advice. In view of the nature of the application, and the time that has passed since the judgment of Sackville J, I do not consider that it would be appropriate to accede to this request in the absence of any indication that the judgment of Sackville J is affected by error. 11 The applicant's failure to attend before the Tribunal made his challenge to the decision of the Tribunal a difficult task. Further, the original claim of the applicant was that he faced persecution in Bangladesh at the hands of the Awami League because of his involvement with the Bangladesh Nationalist Party ("BNP"). By the time of the decision of the Tribunal the BNP had been elected to government in Bangladesh. The Tribunal concluded that as a member of the party in power the applicant did not have a well‑founded fear of being persecuted for expressing his political views in Bangladesh. 12 Sackville J gave careful consideration to the applicant's application. His Honour noted that neither the application nor the affidavit identified with clarity any ground that might establish jurisdictional error such as to warrant the grant of relief under s 39B of the Judiciary Act 1903 (Cth). His Honour found that there was no such ground. The publication of the decision of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 gives added strength to his Honour's conclusions. 13 I am satisfied the proposed appeal has no real prospects of success. 14 The application will be dismissed with costs.