SHHB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for an extension of time within which to appeal from a decision of a Federal Magistrate given on 6 July 2004. The learned Magistrate refused to quash a decision of the Refugee Review Tribunal (the Tribunal) given on 25 February 2003. The Tribunal affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa under the Migration Act 1958 (Cth) (the Act). The application for an extension of time within which to appeal was filed only on 16 February 2005, some six months or so after the time within which an appeal as of right might have been instituted. 2 It is necessary to note only briefly the facts. The applicant is Albanian. He claimed to be eligible for a protection visa because he is a refugee as defined in Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol (the Convention). He claimed to be a refugee by reason of his membership of a particular social group, and that he feared persecution by reason of his membership of that social group. In essence, his claim was that he feared persecution by reason of a blood feud following an incident which occurred on 2 October 1997. The learned Magistrate, by reason of s 91S of the Act, determined that there was no well-founded fear of persecution and so affirmed the decision of the Tribunal.

3 The principles upon which an extension of time within which leave to appeal may be granted under O 52 r 15(2) are now well established. It is necessary in exercising a discretion to have regard to the importance of the issues sought to be raised by the proposed appeal, the prima facie prospects of success of the proposed appeal, and the explanation for the delay: see Howard v Australian Electoral Commission [2000] FCA 1767 and Australian Prudential Regulation Authority v Holloway [2001] FCA 1240. There may be other relevant factors in particular circumstances, but the parties have not identified further relevant circumstances in this matter. 4 The proposed notice of appeal as exhibited to the affidavit of Jane Louise McGrath sworn on 15 February 2005 contains two grounds. One refers to the applicant's membership of a particular social group, namely his family. The second refers to his membership of a particular social group, namely Albanian citizens who are subject to the customary law code of Leke Dukagjini or 'Kanun'. 5 In my view the applicant ought not to be given an extension of time within which to appeal in respect of the second ground of appeal because I do not think there is any prospect of it succeeding. That is simply because the claim was not put before the Tribunal. The fact that it was not put before the Tribunal was recorded in the learned Magistrate's reasons at [12]. In those circumstances, the failure of the Tribunal to investigate and determine such a claim, which was not clearly articulated, could not involve jurisdictional error on its part: see, for example, Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389 at par 24; NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263 at pars 55 to 63; NAVK v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1695 at par 15. 6 As to the first proposed ground of appeal, as counsel for the applicant acknowledged, there is clear and binding authority that it would not succeed. So much has been decided by the Full Court of this court, for instance in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301 (SCAL), SCAG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 302 (SCAG), STCB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 266 (STCB), and particularly in relation to a particular social group specified as the 'family' by Merkel J in SDAR v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1102. 7 The affidavit of Ms McGrath identifies, however, that when the High Court in November 2004 considered an application for special leave to appeal in SCAL and SCAG, remarks were made by Gummow, Kirby and Heydon JJ which indicated that their Honours regard s 91S as potentially giving rise to questions of construction which might attract a grant of special leave to appeal to the High Court, because their Honours regarded s 91S possibly as having some ambiguity within it. The general tenor of those remarks was to suggest that in an appropriate case a grant of special leave to appeal to the High Court might be given. 8 Whilst it is plain that on the present state of authorities the claim as formulated in the first ground of appeal could not succeed, it is not possible in my view to say that there is no prospect of its succeeding if it were to proceed to the High Court in the event of special leave to appeal being given. Normally that would not be a reason to extend time within which to appeal, and so to permit an appeal to proceed. The inevitable result of an appeal in this Court, unless and until the High Court determines otherwise, would be to follow the earlier decisions to which I have referred and so any appeal would be unsuccessful and so any appeal would be unsuccessful. 9 Counsel for the applicant has, however, indicated to me that in six matters, including the matters of STDB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 862 and STJB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 861, there is an application to the High Court for special leave to appeal, in which the point which is sought to be raised by the first of the proposed grounds of appeal is the subject of the application for special leave to appeal. Each of those six applications is proposed to be brought on before the High Court as soon as possible. It seems very likely that each of them will be heard and determined in August of this year. 10 In those circumstances, I raised with counsel for the respondent whether it would be appropriate simply to defer the application for an extension of time until the High Court's attitude to those applications was known. Counsel for the respondent indicated that the respondent wished the application for an extension of time to appeal to be determined beforehand. As the matter is before me, I will proceed to determine it. 11 In my view there is a sufficient prospect of success on the application to set aside the Tribunal's decision to succeed - not before this Court, but before the High Court - to warrant the grant of an extension of time at this point. I have explained above why that is so. An error in the proper construction and application of s 91S which led the Tribunal not to address properly the applicant's claim may give rise to jurisdictional error. There is a delay, as I have observed, but there is no suggestion that the respondent has suffered particular prejudice by the delay and the consequences to the applicant of a refusal of an extension of time within which to appeal, when within a few months it may be apparent that there is a real (or, on the other hand, no) prospect of the application to set aside the Tribunal's decision ultimately being successful and the consequences to him of him being vulnerable to being removed from Australia in the mean time, outweigh the delay in bringing the application for an extension of time. 12 The affidavit of Ms McGrath indicates that it was only when she learnt in November 2004 of the remarks of the members of the High Court in considering the applications for special leave to appeal in SCAL and SCAG that the prospect of there being some chance of a successful appeal being pursued occurred. Up to that time she had properly considered the decisions of this Court about s 91S gave no prospect of the Tribunal's decision being set aside. There is, in the circumstances, a further delay only of several weeks which in the overall picture, in my view, should not weigh against the grant of an extension of time. 13 I therefore propose to make an order extending the time within which the applicant may appeal from the decision of the Federal Magistrate, given on 6 July 2004, to 29 April 2005. That enables the appeal to be instituted by the end of this week. That extension of time is limited to the applicant pursuing the first ground (which is numbered par 3) in the proposed notice of appeal exhibited to the affidavit of Ms McGrath to which I have referred. 14 There would appear to be little point in this matter being further considered by a Full Court constituted by three judges. The very point has recently been considered by the Full Court in STCB on 6 October 2004. Subject to submissions of the parties, I would propose to invite the Chief Justice to direct that the appeal be heard by a single judge and that it be heard following the sittings of the High Court in Adelaide in August. 15 If at that time the High Court has refused special leave to appeal in each of the six matters to which counsel for the applicant referred, it would appear to be appropriate - subject to the views of the judge conducting the matter at the time - for the appeal to be dismissed without further argument. If on the other hand the High Court has given special leave to appeal at that time, it is also likely that the appeal would simply be dismissed but there would be a prospect of the applicant promptly pursuing an application for special leave to appeal to the High Court and, as it were, piggy-backing on those further matters where leave to appeal will by then have been given. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.