FEDERAL COURT OF AUSTRALIA SAAU v Minister for Immigration & Multicultural Affairs [2002] FCA 825 APPEAL – application to extend time to file Notice of Appeal – application by asylum seeker in detention who learned of adverse judgment some days after it was pronounced in open court – application for extension of time made within twenty-one days of learning of the judgment – time extended. SAAU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS (S 209 of 2001) SBBT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS (S 40 of 2002) von DOUSSA J ADELAIDE 27 JUNE 2002 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY BETWEEN: SAAU S 209 of 2001 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: von DOUSSA J DATE OF ORDER: 27 JUNE 2002 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The time for the institution of an appeal herein be extended to 13 June 2002. 2. The Notice of Appeal exhibited to the affidavit of the applicant sworn herein on 13 June 2002 stand as the Notice of Appeal and be processed accordingly. 3. Liberty to the applicant to amend the Notice of Appeal within thirty-five days of today. 4. Direct the applicant within thirty-five days of today to file and serve grounds of appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY BETWEEN: SBBT S 40 of 2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: von DOUSSA J DATE OF ORDER: 27 JUNE 2002 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The time for the institution of an appeal herein be extended to 14 June 2002. 2. The Notice of Appeal exhibited to the affidavit of the applicant sworn herein on 14 June 2002 stand as the Notice of Appeal and be processed accordingly. 3. Liberty to the applicant to amend the Notice of Appeal within thirty-five days of today. 4. Direct the applicant within thirty-five days of today to file and serve grounds of appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY BETWEEN: SAAU S 209 of 2001 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT BETWEEN: SBBT S 40 of 2002 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: von DOUSSA J DATE: 27 JUNE 2002 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 These two matters are listed before the Court this morning for consideration of applications by each applicant to extend time to file a Notice of Appeal against a decision of a single Judge which dismissed an application to judicially review a decision of the Refugee Review Tribunal refusing the grant of a protection visa. Each applicant is and has at all material times been detained at the Woomera Detention Centre. Each applicant is a citizen of Iran. Neither applicant speaks English. The circumstances that give rise to each application are in substance identical. 2 Neither applicant has appeared this morning to argue his application to extend time. The applications were listed for hearing on the basis that a videolink would be available to the applicants so that they could appear. When the matters were called on, the court was informed that neither applicant had attended at the videoconference centre because there is currently in progress a hunger strike and protest by detainees at the Woomera Detention Centre. Notwithstanding the non-appearance of the applicants, I consider that I should proceed nonetheless to deal with their applications. 3 In the matter of SAAU judgment was delivered on his application for judicial review on 17 May 2002. In accordance with the practice of the trial Judge who heard the matter judgment was pronounced in open Court in Canberra but the applicant was not then present either in person, by video or by agent. The applicant first became aware of the decision when reasons for decision were delivered to him in hard copy in Woomera on 24 May 2002. An application made for an extension of time within which to appeal was made on 13 June 2002. As a matter of strict law and procedure the judgment of the trial Judge was formally pronounced on 17 May 2002 and the 21 day period within which the applicant had the right to appeal ran from that date. However, it had expired by 13 June 2002. Nevertheless, the application for an extension of time filed on that day was filed only twenty days after the hard copy of the judgment was delivered to the applicant. 4 In the matter of SBBT, the judgment dismissing the application for judicial review was pronounced in open Court in Canberra on 17 May 2002 but the fact of the decision did not come to the applicant's attention until he received a hard copy of the judgment in Woomera on 24 May 2002. His application for an extension of time was filed on 14 June 2002, twenty-one days after he received the judgment. 5 In each instance therefore steps were taken by the applicant to institute an appeal within twenty-one days of receiving notice of the adverse judgment which the applicant now seeks to challenge. 6 Under O 52, r 15(1) a Notice of Appeal is to be filed and served within twenty-one days of pronouncement of the judgment. Nevertheless under O 52, r 15(2) the Court or a Judge for special reasons may at any time give leave to file and serve a Notice of Appeal. In Jess v Scott (1986) 12 FCR 187 at 195 a Full Court of this Court said that the expression "special reasons" in that sub-rule was "intended to distinguish the case from the usual course". The Full Court added that a case: "… may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary." 7 Counsel for the Minister in each of the applications now before the Court concedes, properly in my view, that there is a "special reason", that reason being that the applicant was not aware of the judgment on the date of its pronouncement and, on learning of the judgment, took steps to appeal within twenty-one days. 8 The power to extend time under O 52, r 15(2) is therefore enlivened by the existence of the special reason. The power, however, is a discretionary one and the Minister contends that the discretion should be exercised against each applicant on the ground that to allow an appeal to proceed would be futile. Counsel contends that in each case the proposed Notice of Appeal which the applicant has lodged as an annexure to the affidavit in support does not identify any legal error in the judgment but says, simply, "I do not have access to legal representative and I request from Court to please help me for a legal representation to be able to defend myself". 9 In each case the reasons of the trial Judge indicate that the trial Judge was unable to detect any error of law by the Refugee Review Tribunal, and expressed the view that the Tribunal arrived at the correct decision. In these circumstances, the submission of the Minister is readily understandable. It is undoubtedly the case that if there appears to be no merit in an appeal, that is a significant factor to be taken into account in the exercise of the discretion whether or not to refuse the application to extend time: see Brehoi v Minister for Immigration & Multicultural Affairs [1999] FCA 772 and Ariaee v Minister for Immigration & Multicultural Affairs [2001] FCA 1627. I give weight to that consideration. Nevertheless I have reached the conclusion that I should exercise the discretion under O 52, r 15(2) by extending time in the particular circumstances of these cases. 10 The affidavits in support of the applications to extend time depose that neither applicant had access to an interpreter to explain the trial Judge's decisions to him at the time when it was received. It is common knowledge that detainees at the Woomera Detention Centre do not have ready access to legal or other advice. Nevertheless they have within twenty-one days of receiving notice of the decision taken steps that have initiated these applications, and have filed documents at Court indicating an intention to appeal. I think it is reasonable to assume that had they been aware of the pronouncement of the judgments they would have proceeded in a like manner within twenty-one days of the date of pronouncement to institute an appeal. Within that time they would have had an unconditional right to appeal regardless of the merits of their case. Having regard to the difficult circumstances in which each applicant is placed by reason of his detention, I think fairness requires that they be permitted in these circumstances to proceed with an appeal. 11 In the interval that occurs between now and the hearing of the appeal each applicant may be able to obtain legal or other advice which enables each of them to identify grounds for appeal which are not at present readily apparent either to the Minister or to me from a reading of the reasons for decision. 12 I therefore exercise the discretion in favour of each applicant and extend time for the institution of an appeal, in the case of SAAU to 13 June 2002 and in the case of SBBT to 14 June 2002. In each case I direct that the Notice of Appeal presently annexed to the affidavit filed in support of this application stand and be processed as the Notice of Appeal. There will be liberty to each applicant to amend the Notice of Appeal within thirty-five days of today. There will be a direction that each applicant file and serve grounds of appeal within thirty-five days of today. I have allowed that extended period because I anticipate a few days in delay in these orders being made available to the applicants in Woomera. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa. Associate: Dated: 27 June 2002 No appearance of Applicants. Counsel for the Respondent: Ms E Reed Solicitor for the Respondent: Sparke & Helmore Date of Hearing: 27 June 2002 Date of Judgment: 27 June 2002