NAJC v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT Introduction 1 The applicant seeks an extension of time to appeal against orders made by Wilcox J on 11 April 2003. On that date his Honour made an order dismissing proceedings under O 32 r 2 of the Federal Court Rules, upon the ground that the applicant had failed to appear at the hearing. A notice of motion was then brought under O 35 r 7(2)(a), to set aside the order of Wilcox J made on 11 April 2003. His Honour dismissed the motion on 15 May 2003. 2 The present application is brought under O 52 r 15(2). It requires "special reasons" to be demonstrated in order for the Court to exercise a discretion in favour of the application to extend time. 3 In Jess v Scott (1986) 12 FCR 187, a Full Court said that "special reasons" is an elastic test suitable for a range of situations which means that it is necessary to establish something out the ordinary for an extension of time to be granted. 4 I should mention here that although the application has been argued upon the basis that it is brought under O 52 r 15(2), as an application to extend time for filing an appeal against his Honour's orders of 11 April 2003, it may well be that the appropriate course was for the applicant to seek to extend time, and indeed to obtain leave to appeal, against his Honour's judgment of 15 May 2003. 5 In any event similar considerations arise whether the application is treated as one under O 52 r 15(2) or whether it is treated as an application for an extension of time to file an application for leave to appeal against the judgment of 15 May 2003. 6 When the matter came before Wilcox J on 15 May 2003 the applicant sought to explain his failure to appear at the hearing on 11 April 2003 on the ground that he was sick. Wilcox J observed at par [3] of his judgment that: "I have some difficulty in accepting that the applicant's health prevented him coming to court on that day. However, I would be disposed to set aside the dismissal order if I was satisfied there was an arguable case of jurisdictional error by the Tribunal. I am not so satisfied." 7 His Honour noted at pars [4] to [7] that he had read the reasons of the Refugee Review Tribunal and he was unable to discern any issue of law or arguable failure to comply with statutory procedures. His Honour observed that the Tribunal rejected the applicant's claim to a protection visa because it was not satisfied of the truth of the claims he made. 8 The applicant appeared before me in person today. He filed his application for extension of time on 28 May 2003. It was supported by an affidavit sworn on 28 May 2003. The only ground put forward in the affidavit as a "special reason" why the notice of appeal was not filed in time was that he was sick. No medical evidence was filed. 9 The affidavit does not describe the illness from which the applicant was suffering. Nor does it explain why it prevented him from coming to court on 11 April 2003. There is no explanation for why the applicant did not contact the court. He told me today that he did not have the phone number of the court but I can give this explanation very little weight because there is no evidence of any steps taken by him to contact the court other than the application which was heard by Wilcox J on 15 May 2003 and the application which he filed on 28 May 2003. 10 The applicant lodged a draft notice of appeal with the application for extension of time. The document is in general terms, it says that the Judge failed to find error of law, jurisdictional error, or relief under s 39B of the Judiciary Act 1903 (Cth). It says that the applicant will provide more grounds later. 11 The applicant filed written submissions which seem to have been prepared with the assistance of a solicitor because they refer to sections of the Migration Act 1958 (Cth) and to a number of well known authorities in the field of migration. 12 The written submissions contend that a ground of appeal is that the Refugee Review Tribunal which refused his application for a protection visa was affected by actual bias. This issue was not raised before Wilcox J and that alone is a reason for dismissing any suggestion that bias would constitute a possible ground of appeal. In any event, bias is a very serious allegation and nothing has been put to suggest that this might be a possible ground of appeal. 13 The applicant also relied on a decision of the High Court in Muin v Refugee Review Tribunal (2002) 76 ALJR 966. There was nothing to suggest that the facts of this case came within the principle stated in that decision. 14 The balance of the written submission merely states principles of law which in any event have no application to the facts of the present case. 15 I agree with the remarks of Wilcox J that no arguable case of jurisdictional error has been shown. 16 In my view for the reasons which I have stated the application for an extension of time must be dismissed and that is the order which I would make. 17 The order of the court then will be that the application is dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.