N1202/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 94; [2002] FCA 403

N1202/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 94 N1202/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 403

NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation. * All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. * All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.

FEDERAL COURT OF AUSTRALIA

N1202/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 403 IMMIGRATION – Decision of Refugee Review Tribunal refusing protection visa – decision of primary judge affirming decision of Tribunal – appellant citizen of Iran of Kurdish ethnicity and adherent to Al-Haqq – appellant's wife converted to Al-Haqq from Islam - whether in assessing degree of risk that appellant would face persecution in the future the Tribunal had regard to the degree of probability that past events had occurred as claimed – where Tribunal did not accept that past events had occurred as claimed because it was unpersuaded or unable to reach a state of positive belief - where Tribunal did not find that appellant was an untruthful witness whose evidence was to be rejected. PRACTICE AND PROCEDURE – Extension of time for appeal – where period of delay in filing the notice of appeal approximately two months – whether special circumstances exist- where appellant does not understand English, is not familiar with the Australian legal system and has been interned in a detention centre without legal representation – whether real issue to be considered in the appeal. Migration Act 1958 (Cth) s 476 Federal Court Rules Or 52 r 15(1) and (2) Ratnam v Cumarasamy [1965] 1 WLR 8 Jess v Scott (1986) 12 FCR 187 referred to Hughes v National Trustees Executor and Agency Co of Australasia Ltd [1978] VR 257 cited Gallo v Dawson (1990) 93 ALR 479 cited Burns v Grigg [1967] VR 871 cited Kalaba v The Queen (unreported, Federal Court of Australia, Finn J, 13 September 1996 cited Howard v Australian Electoral Commission [2000] FCA 1767 cited W105/99A v Minister For Immigration & Multicultural Affairs [2001] FCA 1786 cited Yusuf v Minister For Immigration & Multicultural Affairs (2001) 180 ALR 1 followed Kalala v Minister for Immigration & Multicultural Affairs [2001] FCA 1594 cited Abebe v Commonwealth (1999) 197 CLR 510 followed Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 followed Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 referred to N1202/01A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N1202 OF 2001 LEE, MOORE AND MADGWICK JJ 8 APRIL 2002 SYDNEY