NBJL v Minister for Immigration and Multicultural and Indigenous Affairs

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".