FEDERAL COURT OF AUSTRALIA NAGA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 944 PRACTICE AND PROCEDURE – application for an extension of time within which to file a notice of appeal – application of extension of time previously made – whether special reasons exist for grant of extension – exercise of discretion where previous application dismissed Migration Act 1958 (Cth) s 476(1)(e) Fernando v Ruddock [2000] FCA 1151 cited Hope v Bathurst City Council (1980) 144 CLR 1 distinguished Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85 referred to NAGA & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N 624 OF 2002 TAMBERLIN J SYDNEY 23 JULY 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 624 OF 2002 BETWEEN: NAGA & ORS APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: TAMBERLIN J DATE OF ORDER: 23 JULY 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is dismissed. 2 The applicants pay the costs of the respondent. 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 624 OF 2002 BETWEEN: NAGA & ORS APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: TAMBERLIN J DATE: 23 JULY 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for an extension of time within which to file and serve a notice of appeal. It is made pursuant to O 52 r 15(2) of the Federal Court Rules which enable the Court or a Judge for special reasons at any time to give leave to file and serve a notice of appeal. 2 This is a second application for an extension of time to appeal from orders of Sackville J made on 29 October, 2001. On 30 May, 2002 Emmett J refused an application for extension of time and in his judgment his Honour set out the material background facts and I will not repeat them here. 3 It is settled law that the fact that an earlier application for extension of time has been dismissed provides a powerful discretionary reason to refuse an extension of time in which to appeal: see Fernando v Ruddock [2000] FCA 1151 at [28]. No application has been made to set aside the order of Emmett J in this matter and no appeal was raised. 4 The first argument which is relied on as a basis for the application for leave to appeal is that an error of law is said to have been committed by the Refugee Review Tribunal ("the Tribunal"), so far as it failed to consider the alternative conclusions which could have been reached in relation to a finding as to the inaction by an owner of an organisation in which the first applicant was employed. Reliance is placed on the case of Hope v Bathurst City Council (1980) 144 CLR 1 which in essence is concerned with the distinction between an error of fact and an error of law. In my view, that case does not directly bear on the present application. 5 The matters raised before Sackville J did involve an argument based on a question of law and the terms of s 476(1)(e) of the Migration Act 1958 (Cth) ("the Act") were set out in the application although there was a mistaken reference in the subsection to paragraph (c) in lieu of section 476(1)(e). I am not satisfied that there is any substance in the point that there has been an error of law in relation to the refusal of the Tribunal to accept a suggestion that the first applicant was not harmed by Mr Kim having regard to a pending election. In my view it was open to the Tribunal to make the finding which it did after considering the material before it. 6 The Tribunal reached a conclusion that it was not satisfied that the warning given to the first applicant was sufficiently serious on its own or with other circumstances to give rise to a well-founded fear of persecution if they return to Russia. This is essentially a question of fact and degree well within the area for decision by the Tribunal and is not a matter for consideration by the Court. 7 The second basis which is sought to be raised was not raised before Sackville J, nor before Emmett J, and this was to the effect that there was an error of law on grounds of jurisdictional unreasonableness or constructive failure to exercise jurisdiction. 8 In my view having regard to what is contained in the Tribunal's reasons, I do not consider that this is a strong argument. It is of course not necessary for me to make any finding as to the outcome of either of these arguments but it seems to me, having regard to authority of the Full Court which is binding on me, that the arguments advanced are not strong. This is a matter which I take into account but of course it is not decisive on the question. It is one of the elements for consideration in whether I should exercise my discretion in so far as special reasons have been shown for the grant of an extension of time. 9 It has been submitted that it was reasonable for the applicants not to lodge the notice of appeal for a period of five and a half months having regard to the fact that an application had been made to the Minister in December 2001 to reconsider the application for a protection visa and to consider whether the Minister would be prepared to allow the applicant to remain in Australia. That was made approximately a month after the decision of the Court. 10 On 5 March 2002 notice, dated 4 February 2002, was given of the Minister's refusal of the section 417 application dated 4 February 2002. No satisfactory explanation has been advanced as to why it was that the applicants did not lodge a notice of appeal in the period between 29 October 2001 and 15 April 2002, when the application for an extension of time was in fact lodged. It is true that there was the tragic circumstance on 12 March 2002 that a relative of the applicants had been attacked and died in hospital in Russia. However, even taking this into account the delay is very extensive and there has been no satisfactory explanation provided. 11 In addition, although the applicants were not represented in person before the Tribunal or before Sackville J, they had the benefit of detailed written submissions formulated by a migration agent experienced in the field. It is not a correct view of the matter to suggest that they were unrepresented or did not have the benefit of legal assistance. In fact the submissions filed on 22 October 2001 by the migration agent extend over four pages of detailed submissions. There is no evidence as to whether or not during the period between 29 October 2001 and 15 April 2002 the applicants had the benefit of consultations with the migration agent although it would seem that there may have been consultations at least in relation to the submissions made to the Court. 12 I do not consider that the lack of representation at a hearing carries any significant weight in this case in relation to the exercise of my discretion. It is pointed out that the court has a duty in relation to unrepresented litigants of the type which is indicated in Minogue v Human Rights and Equal Opportunity Commission [1999] FCA 85. However, there is no evidence before me as to any failure by either the Tribunal, by Sackville J or by Emmett J, when considering this matter, to comply with the principles which have been set out in relation to unrepresented applicants. 13 In the circumstances I am not satisfied in this case that any special reasons have been made out. It is important that the matter has been considered by a judge of this court on a previous occasion and the application has been rejected and that decision has not been attacked in any way. In all the circumstances I am not persuaded that the Court should exercise its discretion in favour of granting an extension of time. 14 Accordingly, the application for an extension of time in which to appeal should be dismissed and on ordinary principles costs should follow the event. The applicant should pay the costs of the respondent on this application. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin . Associate: Dated: 30 July 2002 Counsel for the Applicants: R Killalea Counsel for the Respondent: J Smith Solicitor for the Respondent: Clayton Utz Date of Hearing: 23 July 2002 Date of Judgment: 23 July 2002