FEDERAL COURT OF AUSTRALIA De Alwis v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 293 VIJITHA GAMINI DE ALWIS v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W107 OF 2003 TAMBERLIN, R D NICHOLSON & EMMETT JJ 18 DECEMBER 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W107 OF 2003 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: VIJITHA GAMINI DE ALWIS APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGES: TAMBERLIN, R D NICHOLSON & EMMETT JJ DATE OF ORDER: 18 DECEMBER 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. the notice of appeal filed 22 May 2003 be treated as an application for leave to file and serve a notice of appeal pursuant to O 52 r 15(2) of the Federal Court Rules; 2. leave be refused; 3. the notice of appeal be dismissed as incompetent; 4. the costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY W107 OF 2003 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: VIJITHA GAMINI DE ALWIS APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGES: TAMBERLIN, R D NICHOLSON & EMMETT JJ DATE: 18 DECEMBER 2003 PLACE: PERTH REASONS FOR JUDGMENT THE COURT: 1 On 6 August 2002, a judge of the Court ordered Mr V G De Alwis ('Mr De Alwis') to pay the costs of the Minister for Immigration & Multicultural Affairs ('the Minister') of an application made to the Court by Stephen Louis Clegg ('Mr Clegg'), for whom Mr De Alwis acted. On 22 May 2003, Mr De Alwis filed a document entitled 'Notice of Appeal' in which he sought, inter alia, orders granting an extension of time within which to lodge an application for leave to appeal and a notice of appeal and an order setting aside the order of 6 August 2002. The proceeding that resulted from the filing of that document was listed for hearing before the Full Court on 20 November 2003. 2 The Full Court treated the hearing as the hearing of an application for leave to file and serve a notice of appeal pursuant to O 52 r 15(2) of the Federal Court Rules ('the Rules'). When the matter was called on for hearing on 20 November 2003, Mr De Alwis appeared in person and applied for an adjournment on the basis of ill health. He relied on an affidavit sworn earlier on that day which made many irrelevant and inadmissible assertions concerning the state of his health. There was no admissible evidence from Mr De Alwis of his incapacity to prepare for and argue the appeal. The Court therefore refused the adjournment. 3 On 2 November 2001, proceeding W481 of 2001 was commenced by the filing of an application and affidavit sworn by Mr De Alwis. The application claimed judicial review of a decision made under the Migration Act 1958 (Cth) cancelling a visa held by Mr Clegg. Mr Clegg is a citizen of New Zealand who came to Australia on 9 April 1978. In September 1995, he was granted a permanent resident's visa. On 26 November 1999, he was sentenced to a total of 10 years and 6 months' imprisonment by the District Court of Western Australia and, on 17 November 2000, he was sentenced to a total of 4 years' imprisonment by the District Court of Western Australia. 4 On 17 July 2001, the Minister cancelled Mr Clegg's visa pursuant to s 501(2) of the Migration Act. On 25 July 2001, a delegate of the Minister sent Mr Clegg a letter by registered mail advising of the cancellation of his visa. On 2 November 2001, the application was lodged on Mr Clegg's behalf purporting to seek review of a decision of the Administrative Appeals Tribunal to affirm the decision to cancel his permanent resident's visa. In fact, there has been no application to the Administrative Appeals Tribunal and no decision by that body. 5 On 30 November 2001, Lee J gave directions for any amended application by Mr Clegg and affidavits in support to be filed by 14 December 2001. His Honour also gave directions for the filing of any motion for summary dismissal of the proceeding. Pursuant to that direction, a motion for summary dismissal was filed by the Minister on 24 December 2001. An affidavit in support of that notice of motion was filed on 31 January 2002. 6 In the meantime, on 18 January 2002, a notice of appointment of Mr De Alwis as Mr Clegg's solicitor was filed. On 8 February 2002, the matter came before the Court for directions. Mr De Alwis did not appear. Further directions were made for the filing of an amended application and affidavits by 22 February 2002. On 15 March 2002, further directions were made for the filing of an amended application by 5 April 2002. That time was extended on 8 May 2002 and again on 30 May 2002. On 30 May 2002, the Minister's motion for summary dismissal was also listed for hearing on 26 June 2002. 7 The motion for summary dismissal came before French J on 26 June 2002. On that occasion, Mr De Alwis appeared and handed up an amended application. The primary relief sought in the amended application was a declaration that Mr Clegg is a citizen of Australia. In the alternative, it asserted that the decision of the Minister to cancel Mr Clegg's visa was 'bad in law' and otherwise 'flawed' on a number of grounds, none of which was particularised. 8 Following the hearing on 26 June 2002, French J, for reasons published on 3 July 2002, ordered that Mr Clegg's application be dismissed: see Clegg v Minister for Immigration & Multicultural Affairs [2002] FCA 852. His Honour concluded that, accepting that the decision under review was a decision of the Minister rather than the Administrative Appeals Tribunal, the proceeding was commenced well beyond the expiry of the time within which such a proceeding must be commenced, if the Court is to have jurisdiction. His Honour concluded that, having regard to the provisions of the Migration Act, the Court had no jurisdiction to entertain any application for review of the Minister's decision. His Honour considered that nothing was said by Mr De Alwis that disclosed an arguable case in support of the proposed amended application. 9 His Honour concluded that the Court lacked jurisdiction to entertain the application which, on its face, his Honour considered was hopeless in any event. His Honour observed (at [11]): 'If Mr Clegg ever had a case for review of the Minister's decision in this Court, he has lost his chance to put it. He has been incompetently represented.' His Honour declined to make an order for costs against Mr Clegg. 10 On 10 July 2002, the Minister filed a notice of motion for orders that Mr De Alwis pay the Minister's costs of the application, including reserved costs and costs of that motion. The motion was supported by an affidavit which simply referred to the reasons of French J delivered on 3 July 2002. 11 The notice of motion was served on Mr De Alwis personally on 22 July 2002 and an affidavit was served on 31 July 2002. This stated that the considerations relied on to support the costs order made against Mr De Alwis were the reasons given by French J on 3 July 2002. The motion was returnable for hearing on 6 August 2002. The motion was called on for hearing on that day. There was no appearance by Mr De Alwis. French J made an order that Mr De Alwis pay the Minister's costs of the application by Mr Clegg including reserved costs and the costs of the motion of 10 July 2002. That order was entered on 12 August 2002. 12 On 22 May 2003, the notice of appeal in the present proceeding was filed by Mr De Alwis. The notice of appeal consists of ten pages and specifies twelve grounds. Clearly, the notice of appeal was filed out of time, having regard to O 52 r 15 of the Rules, assuming that the order made on 6 August 2002 was a final order. Under r 15(1)(a), the notice of appeal should have been filed and served within 21 days after 6 August 2002, the date when French J pronounced the order. However, r 15(2) provides that the Court or a judge 'for special reasons' may at any time give leave to file and serve a notice of appeal: see Jess v Scott (1986) 12 FCR 187 at 195. 13 Under r 15(4), for present purposes, the application must be determined after an oral hearing. Under r 15(5), an application for leave is required to be made in or substantially in the form numbered 54A in Sch 1 of the Rules. Under r 15(6), such an application must be accompanied by an affidavit showing: * the nature of the case; * the questions involved; and * the reason why leave should be given. None of those requirements was complied with in respect of the notice of appeal filed by Mr De Alwis. 14 The Court heard Mr De Alwis at some length on the question of whether or not leave should be given to file the notice of appeal out of time. Mr De Alwis asserted from the bar table that there were various reasons why he had not filed his notice of appeal in time. He accepted that he became aware of the order made by French J no later than November 2002, when he was served with a bill of costs on behalf of the Minister. He said that he had not filed a notice of appeal before 22 May 2003 because of lack of funds, pressure of other work and his poor health. However, no evidence was furnished in support of any of those grounds. In the absence of any affidavit in compliance with O 52 r 15(6) the Court had no substance on the question of the nature of the case and the questions likely to be involved in the appeal. The only material on those questions consisted of two grounds in the notice of appeal. The affidavit sworn on 20 November 2003 did not address the question of the reason why leave should be given. 15 It is necessary for Mr De Alwis to demonstrate special reasons. He has failed to do so. He addressed the Court at considerable length concerning his state of health, other commitments and other concerns that affect him. There was no evidence to support them. No explanation was proffered as to why Mr De Alwis had failed to comply with the requirements of O 52 r 15. 16 In the circumstances, it is clear that Mr De Alwis has failed to establish any reason, much less special reasons, for giving leave to file the notice of appeal more than nine months beyond the time limited by O 52 r 15(1)(a)(i). In so far as the notice of appeal should be treated as an application for leave under O 52 r 15(2), leave should be refused. It follows that the notice of appeal is incompetent and should be dismissed. Mr De Alwis should pay the Minister's cost of the proceeding. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, R D Nicholson and Emmett. Associate: Dated: 18 December 2003 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: L B Price Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 21 November 2003 Date of Judgment: 18 December 2003