W281 v Minister for Immigration & Multicultural Affairs

introduction 1 The Court has before it an application for an extension of time in which to file and serve a notice of appeal from a judgment of French J given on 9 April 2002. On that date his Honour dismissed the applicant's application for review of a decision of the Refugee Review Tribunal, made on 26 March 2001, affirming the decision by a delegate of the respondent not to grant the applicant a protection visa.

factual and procedural background 2 The applicant, who at all material times has been in migration detention, was represented by counsel on a pro bono publico basis at the hearing before his Honour. He was not present, nor was he represented, when judgment was handed down. It is common ground that the applicant was not informed at that time of the result of his application, but only learned of it on 30 July 2002 when he received a copy of his Honour's reasons for judgment. The application for an extension of time was lodged on 14 August 2002 i.e. fifteen days after he learned of the result, but just over three months after the time limited (21 days), under O 52 r 15(1) of the Federal Court Rules, for filing an appeal. 3 Under O 52 r 15(2) the Court may, for special reasons, extend the time for filing and serving a notice of appeal. 4 The respondent accepts that the jurisdiction of the Court under r 15(2) may be enlivened by the circumstances in this matter i.e. the fact that the applicant only learned of the judgment after the 21 day appeal period had lapsed. I think that the respondent is correct in doing so. 5 However, the respondent submits that the application should be dismissed, as any appeal would be futile and bound to fail. The respondent submits that the apparent lack of merits of the proposed appeal should be taken into account as a material, and indeed determinative, factor in the exercise of the Court's discretion whether or not to extend time. That submission focuses consideration on what his Honour decided. 6 His Honour upheld an objection to competency on the basis that the Court did not have jurisdiction to hear the applicant's application for review. That was because the application was filed in this Court out of time. 7 The applicant's evidence was that he received the Tribunal's reasons for decision on 27 March 2001. Under s 478(1) of the Migration Act 1958 (Cth) ("the Act") as it then was, the applicant was required to lodge the application for review within 28 days of being notified of the Tribunal's decision. His Honour found that the applicant completed an application to this Court for an order of review on 20 April 2001 and placed that application in the appropriate receptacle at the Curtin Detention Centre on that day. On 23 April 2001 (a Monday) the application was collected by an officer of the respondent's Department and passed to Australasian Correctional Management (ACM) for transmission to the Court. The ACM trust officer declined to transmit the application to the Court because there were insufficient funds in the applicant's account at the Centre to meet the cost of the fax. On 24 April 2001, the application was returned to the departmental officer and the applicant was told that it had not been sent to the Court, for want of necessary funds. This was the last day of the 28 day period which started when the applicant was notified of the Tribunal's decision. The applicant arranged to obtain funds from another detainee to enable the fax to be transmitted. Although the application was re-lodged by the applicant with the respondent's Department on that day (24 April 2001) the request was not processed until 26 April 2001 and in fact was not sent until 5 July 2001 when the applicant approached an officer of the respondent's Department to complain that he had received no notification of a directions hearing date. 8 At first instance, the applicant submitted through counsel that s 478(1)(b) should be interpreted so as to encompass delivery to the respondent's agent in a detention centre. 9 His Honour, as he was obliged to do, followed the decision of a Full Court of this Court in Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468 at 471 to the effect that an application for review will be "lodged" when it comes into the possession of a Registry or the staff of a Registry. An application sent by facsimile will be in possession of the Registry when the transmission is complete. See also Abidin v Minister for Immigration and Multicultural Affairs [2001] FCA 842. 10 Accordingly, on the facts, the applicant's application was not lodged within the 28 day period. 11 Section 478(2) of the Act provided: "(2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application outside the period specified in paragraph (1)(b)." 12 His Honour followed a well-established line of authority to the effect that this time limit was jurisdictional and that the Court had no jurisdiction to extend time. His Honour concluded (and I respectfully agree with his observations): "The draconian operation of the time limit provisions of the Act illustrates the proposition that absolute, one size fits all, time limits are capable of giving rise to injustice in particular cases. Section 478(1)(b) and the authority of the decisions to which I have referred, leave the Court no room to move on this jurisdictional question. The objection to competency must therefore succeed."