WAAJ v Minister for Immigration & Multicultural Affairs [2002] FCA 757

FEDERAL COURT OF AUSTRALIA

WAAJ v Minister for Immigration & Multicultural Affairs

[2002] FCA 757

WAAJ v Minister for Immigration & Multicultural Affairs

W469 of 2001

CARR J

13 JUNE 2002

PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W469 OF 2001

BETWEEN: WAAJ

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE OF ORDER: 13 JUNE 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The applicant have leave to file and serve within 21 days of today's date a notice of appeal from the judgment given on 16 January 2002 dismissing his application to review a decision of the Refugee Review Tribunal. 2. The costs of this application be the respondent's costs in the appeal, with liberty to the respondent to apply for costs if no notice of appeal is filed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W469 OF 2001

BETWEEN: WAAJ

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE: CARR J

DATE: 13 JUNE 2002

PLACE: PERTH

REASONS FOR JUDGMENT 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 given on 16 January 2002. The application was filed on 29 April 2002, but it was preceded by some draft similar documents sent to the Court on 12 April 2002. 2 The applicant is an Iranian national, 26 years of age, who arrived in Australia on 25 March 2001. On 7 July 2001 the applicant applied for a protection visa. When that application was refused, the applicant applied to the Refugee Review Tribunal for a review of that decision. When the Tribunal affirmed the decision, the applicant on 5 October 2001 applied to this Court for review of the decision. 3 The hearing of that application took place on 16 January 2002. From the transcript of the hearing, it appears that the applicant was unrepresented but had the assistance of an interpreter. 4 The transcript indicates that the hearing commenced at 9.51 am and terminated at 9.53 am whereupon judgment was delivered. The transcript of the hearing comprises two full single spaced pages and another eight lines on the third page. From my experience in these matters, particularly taking into account the time which is required for interpretation, I think that the hearing must have lasted more than two minutes. I think it probably lasted about ten minutes. 5 It is clear from the transcript that his Honour told the applicant that his application would be dismissed and I infer from the transcript that as judgment was delivered his Honour's reasons were interpreted to the applicant. In short, I am satisfied that the applicant was aware on 16 January 2002 that his application had been dismissed. 6 Accordingly, under Order 52 rule 15(1), which imposes a 21 day time limit for lodging a notice of appeal, the applicant had until 6 February 2002 in which to lodge such a notice. 7 However, Order 52 rule 15(2) provides that a Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. 8 In the application for an extension of time the applicant states: "I was not notified of the 21 day limit to appeal in the decision by the Federal Court." "I will send my complaints about decision below and RRT in writing in Farsi language. I can to mention in brief that the errors made by the RRT's member were not considered by the Judge below properly." 9 In an unsworn affidavit which appears on the Court file the applicant says this: "I was not notified of the 21 days limit to appeal in the decision by the Federal Court. I must clear that I can not read or write in English language." 10 The applicant has not filed any further documents. 11 The first question for me to decide is whether special reasons exist which might lead to the grant to the applicant of leave to file and serve a notice of appeal. 12 The leading, and probably most-cited authority in this context is the decision of a Full Court of this Court in Jess v Scott (1986) 12 FCR 187. The Full Court in that case made it clear (at p 196) that a discretion to relax the requirements of general rules should not itself become entangled in a web of rules spun out of the Court's discretionary decisions. Their Honours said that decisions in matters such as this are not authorities upon the facts but upon principle and the facts must be regarded as unique to the particular case. 13 The respondent, in his written submissions, in my view quite fairly, concedes that the applicant's detention, lack of English and lack of access to a lawyer or legal expertise may afford a basis for finding the existence of special reasons. In my view, those circumstances amount to special reasons within the meaning of Order 52 rule 15(2). 14 The respondent submits that the Court's discretion should not be exercised in the applicant's favour because he has not filed any document showing the nature of the case which he wishes to raise if leave is granted and nor has he filed any proposed notice of appeal which might disclose those matters. The respondent goes further and submits that there is no basis upon which the Court could exercise its discretion to grant an extension of time in which to appeal. The respondent relies on certain authorities to the effect that the absence of sufficient prospect of success forms a basis for refusal to grant an extension of time. 15 Finally, the respondent submits that his Honour's reasons for judgment do not demonstrate any error, so that even without the applicant having raised any ground of appeal, it could not be said that any appeal would have sufficient prospect of success to make it just that the applicant should now be allowed to proceed with an appeal. 16 Earlier this year I had cause to review the relevant authorities in two cases, one known as WABD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 299 and another case entitled WABX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 300. I incorporate here by reference the observations which I made in paragraphs 15 and 16 of WABX. 17 I accept that on the authorities, the apparent merits of a proposed appeal are a relevant factor in deciding whether to grant an application of this type. But the applicant is at a considerable disadvantage in putting forward grounds of appeal. My experience (including fairly extensive experience of sitting on Full Courts in such matters) is that, where an appellant is unrepresented, Full Courts quite often do not confine themselves to any grounds as drafted but look at the decision of the Tribunal and any other admissible materials to see whether the Tribunal's decision is reviewable and thus whether there was any error of law on the trial judge's part. The extent of such possible review has yet to be made entirely clear. The pattern of success and failure in refugee cases decided by Full Courts of this Court in recent times suggests to me that one can seldom predict confidently that any particular appeal has no hope of success. 18 I have read the Tribunal's reasons and those of the primary judge. My provisional assessment is that the prospects of success on appeal in this matter may not be particularly strong. However, in balancing the various factors, including the absence of any significant prejudice to the respondent, I do not think that that factor outweighs what I consider would be an injustice to the applicant if he were not allowed an extension of time in which to lodge his notice of appeal. 19 Leave will be granted to the applicant to file and serve within 21 days of today's date a notice of appeal from the judgment given on 16 January 2002 dismissing his application to review a decision of the Refugee Review Tribunal. I think that the costs of this application should be the respondent's costs in the appeal. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.