FEDERAL COURT OF AUSTRALIA Al Adwan v Minister for Immigration & Multicultural Affairs [2001] FCA 1024 MIGRATION – application for leave to appeal to a Full Court against first instance decision determining as incompetent an application for review of a decision of the Refugee Review Tribunal made outside the time limit stipulated by legislation – such application for leave made outside the time for appealing prescribed by the Rules of Court – decision at first instance as to incompetency of the application for review supported by four earlier decisions of the Court at first instance – discretion to grant leave should not be exercised primarily upon ground as to futility. Federal Court Rules Order 52 Rule 15(b) Migration Act 1958 (Cth) ss 415(1)(b) and 478(1)(b) Migration Regulations 1994 (Cth) rr 4.31(1) and 5.03(1) Chand v Minister for Immigration and Multicultural Affairs [2000] FCA 1743 referred to Jayaweera v Minister for Immigration and Multicultural Affairs (2000) 101 FCR 395 referred to Kumar v Minister for Immigration and Multicultural Affairs (1999) 58 ALD 680 referred to Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584 referred to Sustiatin v Minister for Immigration & Multicultural Affairs (1998) 83 FCR 574 referred to Minister for Immigration and Multicultural Affairs v Mohammad (2000) 101 FCR 434 referred to ABDEL FATEH ABUARAB AL ADWAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 80 of 2001 JUDGE: CONTI J DATE: 20 JULY 2001 PLACE: SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 80 OF 2001 BETWEEN: ABDEL FATEH ABUARAB AL ADWAN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: CONTI J DATE OF ORDER: 20 JULY 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Application for leave to appeal out of time dismissed. 2. Applicant to pay the Respondent's costs of the appeal. 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 N 80 OF 2001 BETWEEN: ABDEL FATEH ABUARAB AL ADWAN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: CONTI J DATE: 20 JULY 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The Applicant refugee has sought leave to appeal pursuant to Order 52 Rule 15(1)(b) of the Federal Court Rules against the decision of Sackville J delivered on 14 June 2001, whereby his Honour upheld the Minister's objection to the competency of the Court to review a decision of the Refugee Review Tribunal made on 7 December 2000 to refuse to grant to the Applicant a protection visa. 2 The Tribunal had reached such decision because the Applicant had not lodged an application for review of the decision of the Minister's delegate within the period of twenty-eight days prescribed by Migration Regulation 4.31(1) for the purposes of s 412(1)(b) of the Migration Act 1958 (Cth) ("the Act"). The delegate's decision had been earlier made on 15 February 2000, and the Applicant was deemed to have received a letter notifying him of such decision on 22 February 2000. The RRT did not receive the application for review from the Applicant until 11 May 2000, whereas the same should have been made by 22 March 2000. 3 Unfortunately for the Applicant, a yet further timing error was made by him. The letter notifying the Applicant of the RRT's decision adverse to the Applicant was sent to the Applicant by registered mail on 8 December 2000., However the application to this Court for review of the Tribunal's decision was not filed by the Applicant until 29 January 2001, some forty-five days after 15 December 2000, by which latter time the Applicant was deemed to have been notified of the same. Section 478(1)(b) of the Act, being the counterpart to s 412(1)(b) thereof, provides that such application to the Court should have been lodged with the Court within twenty-eight days of being deemed to have been notified of the Tribunal's decision. 4 The last day for the Applicant to have filed an appeal from the adverse judgment of Sackville J was 5 July 2001, that is to say, within twenty-one days after such judgment was handed down on 14 June 2001 (see [1] above). The application for leave to appeal out of time was not filed with the Court until 9 July 2001. Order 52 Rule 15(1) is in the following terms (so far as is relevant): "15 (1) The notice of appeal shall be filed and served – (a) within 21 days after – (i) the date when the judgment appealed from was pronounced; (ii) … (iii) …; or (b) within such further time as is allowed by the Court or a Judge upon application made by Motion upon notice filed within the period of 21 days referred to in the last preceding paragraph." 5 The issue before me therefore is whether the present application for leave to appeal out of time, lodged pursuant to the above extracted Order 52 Rule 15(1)(b), should be granted. The Respondent opposes the present application for leave. No affidavit has been filed by the Applicant refugee in support of the present application, whether by way of explanation of this further omission, or otherwise. When I asked the Applicant why a notice of appeal had not been lodged by him within the twenty-one day period prescribed by the Rules of the Court, his response was merely to the effect that he had thought the period of time within which to do so was twenty-eight days. 6 Returning to the proceedings in this Court at first instance, on 29 March 2001, Sackville J had directed that both parties to the litigation should respectively file affidavits and written submissions with the court. No affidavit and no written submissions were provided by the Applicant, whether as to the critical matter of explaining his failure to act within a timely way or otherwise. In a comprehensive digest of the applicable legal principles, Sackville J found himself constrained to hold that the Application before him was incompetent and should not be allowed, in particular by reference to four recent decisions of the Court handed down in connection with the relationship between s 478(1)(b) of the Act and Regulation 5.03(1) of the Migration Regulations. 7 Such four decisions were Susiatin v Minister for Immigration & Multicultural Affairs (1998) 83 FCR 574 (Beaumont J), Kumar v Minister for Immigration & Multicultural Affairs (1999) 58 ALD 680 (Mansfield J), Jayaweera v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 395 (Heerey J) and Chand v Minister for Immigration & Multicultural Affairs [2000] FCA 1743 (Moore J), to the effect that Regulation 5.03 in its present form was valid. Sackville J expressed his agreement with the reasons for each of the four decisions first mentioned above, the same being referrable to the relationship between s 478(1)(b) of the Act and Regulation 5.03(1), and his Honour also expressed agreement with the last mentioned decision of Moore J as to the validity of Regulation 5.03(1). Whilst such four decisions concerned Regulation 5.03 in the form it took prior to the amendment made thereto on July 2000, such amendment made no difference to the reasoning in each case, as Sackville J pointed out below, and the same remains precisely in point. 8 Since five judges of this Court including Sackville J, have ruled to the effect that out-of-time applications to the Court to review adverse decisions of the Tribunal are incompetent and must therefore necessarily fail, it must follow that the prospects of a Full Court taking a different view are so unfavourable as to require that I should in the exercise of my discretion refuse to grant the application for leave to appeal out of time against the judgment of Sackville J now before me, irrespective of the apparent inadequacy of explanation for the default in lodging an appeal within time, being a default similar to that which visited each of the preceding applications for review. I find myself constrained to follow that course, notwithstanding a contrary view taken by Burchett J in Sook Rye Son v Minister for Immigration & Multicultural Affairs (1999) 86 FCR 584, in circumstances where the other members of a Full Court did not address the question, being a view which his Honour repeated in Minister for Immigration & Multicultural Affairs v Mohammad (2000) 101 FCR 434. 9 The Application for leave to appeal is therefore dismissed. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 31 July 2001 The Applicant was unrepresented Solicitor for the Respondent: Sparke Helmore Date of Hearing: 20 July 2001 Date of Judgment: 20 July 2001