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

Federal Court of Australia|2003-02-07|Before: Lindgren J

INTRODUCTION 1 The applicant seeks an extension of time in which to file a notice of appeal against orders made by the Federal Magistrates Court of Australia on 21 November 2002. The 21 day period for the filing of such a notice of appeal expired on 12 December 2002. The applicant filed his application for extension of time which commenced this proceeding on 18 December 2002. Annexed to the application for extension of time was a draft notice of appeal. 2 The applicant was six days late. It is not suggested that the respondent Minister ("the Minister") would suffer any prejudice if an extension of time were granted, but "special reasons" must be shown before an extension of time may be granted (see O 52 subr 15(2) of the Federal Court Rules) and the Minister submits that they are not shown here. 3 The applicant explains his delay by saying that he understood that the time allowed was 28 days. There is no affidavit evidence to this effect. The applicant has made a statement to the effect described from the bar table, but I have no reason to doubt the correctness of his statement. 4 The application for extension of time in the present case turns, in substance, on the question of whether there is an arguable appeal point. 5 The draft notice of appeal states the following grounds of appeal (solecisms included): "The appellant is aggrieved because the RRT [a reference to the Refugee Review Tribunal] did not render the applicant time and opportunity to provide evidence of his claims of being a refugee, and hence was unrealistic and biased in deciding the fate of the applicant. The applicant has real chance of persecution should he return to his country, which was irresponsibly ignored by the Tribunal and hence erred in law, in accordance with section 476(e) of the Migration Act 1958." The paragraph which was formerly par 476(1)(e) no longer forms part of the Migration Act 1958 (Cth) ("the Act"). The application before the Refugee Review Tribunal ("the Tribunal") was an application for review of a decision of a delegate of the Minister refusing the applicant a protection visa, and the application before the Federal Magistrates Court was for review of the Tribunal's decision.

background 6 The applicant is a national of Bangladesh who arrived in Australia on 25 June 2001 on a student visa which entitled him to remain in Australia until 22 June 2002. The visa did not entitle him to work. After arriving in Australia, the applicant applied for and received a second student visa entitling him to work for a limited number of hours per week. The second visa entitled him to reside in Australia up to the same date as the first one, 22 June 2002. 7 On 2 April 2002, following what the applicant has referred to as an absence of two weeks from school due to illness, he was detained by the Department of Immigration and Multicultural and Indigenous Affairs. He is no longer in immigration detention. 8 On 30 April 2002, the applicant lodged an application for a protection visa. On 12 June 2002, a delegate of the Minister refused to grant him such a visa. On 12 June 2002, the applicant sought review of that decision by the Tribunal. 9 There was a hearing before the Tribunal on 19 July 2002, at which the applicant was assisted by a migration agent. The Tribunal reviewed the claims and evidence of the applicant and, in the "Findings and Reasons" section of its Reasons for Decision, made it clear that it did not believe the applicant. For example, the Tribunal dismissed a particular claim as "an illogical fabrication". The Tribunal referred to the applicant's evidence as "vague, ignorant, and contradictory", and referred to "inconsistencies and other problems" in the applicant's evidence. 10 On 7 August 2002 the Tribunal affirmed the delegate's decision. 11 Against the Tribunal's adverse findings on credit, the applicant faced a difficult task in seeking review before the Federal Magistrates Court.

reasoning 12 The Federal Magistrate, while referring to s 474 of the Act, considered the two grounds on which the applicant seeks to rely in his draft notice of appeal. His Honour was satisfied that the applicant was given sufficient time to provide additional submissions. The Tribunal had in fact allowed the applicant 14 days following the hearing in which to provide additional submissions, and the applicant had provided them within seven days. Before me today the applicant has said that he needed two to three months following the hearing before the Tribunal, not merely in which to provide submissions, but in which to obtain further evidence. 13 I am asked to accept, without any evidence being produced today, that the applicant would have been able to obtain additional evidence if allowed some two to three months for the purpose following the hearing before the Tribunal on 19 July 2002. The applicant has now had two to three months since the decision of the Federal Magistrate and some six to seven months since the hearing before the Tribunal in which to procure the supposed further evidence, but has not done so. There is no merit in the first proposed ground of appeal and I think the Federal Magistrate was correct to reject it. 14 The second ground, error of law, is not easy to understand from the terms of the draft notice of appeal. Literally, according to the draft notice of appeal, the supposed error of law is that the Tribunal "irresponsibly ignored" the "real chance of persecution" the applicant has if returned to his country of nationality. There is also a reference to bias. There is no evidence of bias in the Reasons for Decision of the Tribunal. As to error of law, although not addressed in terms by the Federal Magistrate, it is clear that his Honour recognised that the Reasons for Decision of the Tribunal turned on findings on credibility adverse to the applicant. It can not be said that the Tribunal was not, as a matter of law, entitled to reach the conclusion it in fact reached in this respect.

conclusion 15 For the above reasons, an appeal would be futile. Accordingly, the Court orders that:

The application for extension of time be refused.

The applicant pay the respondent's costs of the application for extension of time.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren J.

Solicitor for the Respondent: Mr Z Chami of Clayton Utz

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