Rahmatullah v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for an extension of time in which to file and serve a notice of appeal. The judgment to be appealed from was one in which the primary judge dismissed an application seeking both a declaration that the applicant was unlawfully detained and for an order in the nature of habeas corpus, directing that he be released from detention. The applicant is an unsuccessful applicant for a protection visa. 2 The present application arises in somewhat unusual circumstances. The application for extension of time was filed one day after the time prescribed in the rules of this court for the filing and serving of a notice of appeal. In an affidavit filed with the application by the solicitor for the applicant the circumstances for the one day delay are explained. It resulted from an inaccurate email transmission by counsel of a proposed notice of appeal in the matter. 3 It is conceded by the respondent Minister, who opposes the application, that the one-day delay would result in no prejudice being suffered by the Minister on account of the delay itself. It is equally conceded that, to the extent the delay was occasioned by the applicant's legal advisers, it is not a matter with which the applicant should be fixed with fault in some fashion. As I have indicated, the Minister nonetheless opposes the application and does so essentially on the ground of the merits of the matter. 4 Order 52 r 15(2) of the Federal Court Rules gives the Court, or a judge of it, a discretion to grant leave to allow a notice of appeal to be filed and served at any time for special reasons. The significance of the term "special reasons" has been analysed at some length in some number of the decisions of this court but, most notably in Jess v Scott (1986) 12 FCR 187 at 195: "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 that 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 (not necessarily will, for the rule gives a discretion) 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." 5 In Jess v Scott the Court referred to considerations which should be taken into account when considering whether leave should be granted. I have already referred to prejudice. Amongst the other matters referred to are the prospects of the appeal itself, should leave be granted. It is upon this particular matter that the respondent in this case focuses. In essence what the respondent puts is that there is no reasonable prospect of success at all and, for that reason, my decision should be in favour of a refusal of grant of leave. 6 At first flush the draft notice of appeal that has been filed in support of this matter does not appear particularly promising. The matter arises in the following way. The applicant claimed to be an Afghani and feared persecution in that country. His application was refused by the Refugee Review Tribunal because the Tribunal did not believe he was an Afghani citizen and consequently did not find that he had a well-founded fear of persecution if returned to Afghanistan. Judicial review of that decision was sought and the application for review was dismissed. The applicant was in custody as an unlawful non-citizen for the purposes of the Migration Act 1958 (Cth), and the process is being put in place for the removal of the applicant from Australia under s 198 of the Migration Act. The circumstances of the removal are somewhat unusual in that though the applicant has not been found not to be cooperating with the Minister in the matter of his removal, the removal that is currently being sought is to Afghanistan. 7 The applicant still maintains that he is an Afghani. The principal ground in his notice of appeal in this matter is that the Minister was not entitled to remove the applicant to Afghanistan without first having determined his claim to refugee status from that country on its merits. Standing in the way directly of that ground is a decision of the Full Court of this court in SPKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 295. Counsel for the applicant acknowledged the difficulty that that decision occasions to the application and accepted that it would need to be argued before the Full Court that that decision is clearly wrong. It is likely it would otherwise be followed by an appellate court. I should add that the judgment appealed from in this matter is consistent with the decision in SPKB. 8 The present draft notice of appeal on its face attacks the ultimate fact finding made by the trial judge: that is, his Honour erred in finding that there was a real prospect of the applicant being removed from Australia in the reasonably foreseeable future. It is claimed that the judge ought to have found there was no reasonable prospect of the applicant obtaining travel documents from the Afghani Embassy within any measurable time frame. I do not have the advantage of having before me the evidence that was before the primary judge, which would provide me with any real indication as to the extent to which, if at all, this is an arguable ground of appeal. 9 During the course of today's hearing counsel for the applicant raised another matter which, on consideration, appears to suggest that several grounds are in fact being sought to be raised and not simply an attack on the fact finding. This is that in applying the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri (2003) 197 ALR 241, the primary judge incorrectly addressed the question raised by that decision in that he did not address whether the real prospect existed within a measurable time frame. Rather his Honour simply adopted a "wait-and-see" test. 10 I am not certain that this will ultimately be found to be a fair criticism of his Honour's judgment in its setting. As I indicated before, I do not have the evidentiary material before me, which I think is an important consideration when looking at his Honour's judgment and the language which he employs in it. Be this as it may, that question and also the fact finding that was made in relation to the prospect of removal to Afghanistan do not seem to me to be so unarguable that any appeal is doomed to failure. 11 In saying that I am not suggesting that the prospects of success in this matter are particularly high. All I am being asked to do is allow a notice of appeal to be filed in circumstances where, but for problems with an email transmission, the applicant would have been entitled as of right to raise these matters. In all the circumstances I consider that that leave ought to be given, but be given on the condition that on or before 26 February 2003 the applicant file and serve an amended notice of appeal, which reflects the matters that have been argued before me today and which are to be raised on the appeal. 12 The order of the Court will be that: 1. The applicant be given leave to file and serve a notice of appeal on or before 26 February 2004. 2. The costs of this application be costs in the appeal.