Applicant NANE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1407

FEDERAL COURT OF AUSTRALIA

Applicant NANE of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1407

APPLICANT NANE OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1075 OF 2002 LINDGREN J 8 NOVEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1075 OF 2002

BETWEEN: APPLICANT NANE OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 8 NOVEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application for an extension of time within which to file a notice of appeal be dismissed. 2. The applicant pay the respondent's costs of that application. 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 1075 OF 2002

BETWEEN: APPLICANT NANE OF 2002

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 8 NOVEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant seeks leave to appeal out of time against an order made by Sackville J on 10 September 2002 dismissing his application at first instance and ordering him to pay the costs of the respondent ("the Minister") ([2002] FCA 1200). The applicant had sought judicial review of a decision of the Refugee Review Tribunal ("RRT") made on 25 June 2002, by which the RRT had affirmed a decision not to grant him a protection visa. The application for extension of time was filed on 14 October 2002, thirteen days after 1 October 2002 – the date on which the twenty-one day period allowed by O 52 r 15 of the Federal Court Rules for the filing of a notice of appeal had expired. 2 The proposed grounds of appeal are as follows: "1. The applicant applies for an extension of time in which to file and serve a notice of appeal from the judgment of Sackville J given on 10 September 2002 at Sydney. 2. An extension of time is required because a notice of appeal was not filed and served within the time limited by Order 52 rule 15. 3. The applicant intends to present his case and argument in writing pursuant to Order 52 subrule 15(5). 4. The grounds of the application appear in the annexed affidavit." 3 The applicant sttes in his affidavit in support of the application for an extension of time that he was present in court on 10 September 2002 when the learned primary Judge gave his judgment, and understood that his application had been dismissed, but did not understand the reasons given for the dismissal. 4 He states that on 24 September 2002 he was moved from the Immigration Detention Centre at Villawood in Sydney to the "Baxter Detention Centre", South Australia, having been notified of this proposed relocation at 5.00 pm the previous day. According to the applicant's affidavit, a copy of his Honour's reasons for judgment was sent to the Immigration Detention Centre at Villawood, but he (the applicant) did not receive it. He says that even at the time of lodging his application for an extension of time, he had not received a copy of his Honour's reasons for judgment, and so was still, he says, unaware of the reasons for dismissal of his application. 5 The application for extension of time was before me last Friday, 1 November 2002. Ms Hunt of the Jesuit Refugee Service then asked for an adjournment for the purpose of enabling legal advice to be obtained on behalf of the applicant. With some doubt, I adjourned the matter to today for hearing. I say "with some doubt" because, on the face of the reasons for judgment of Sackville J, an appeal appeared to be futile. 6 This morning, Mr Ian Byrne, solicitor, appears for the applicant and seeks an adjournment for three weeks to enable a possible ground of appeal to be explored. The application for an adjournment is opposed. 7 It is not suggested for the Minister that there is any prejudice arising to him from the fact that the present application was made thirteen days late. Nor is it suggested that there would be any particular prejudice to him in the granting of the further adjournment for three weeks. Nonetheless, in my opinion the adjournment should not be granted. The reason is that the most that can be said, and Mr Byrne quite properly concedes this, is that further inquiries may reveal a ground of appeal. 8 Apparently, last night the applicant informed Mr Byrne by telephone that he gave a document to the Department of Immigration and Multicultural and Indigenous Affairs ("the Department") which reflects the current situation in Iran, and that the documentary evidence in that respect before the RRT was not up to date. It is said that if that document can be located it may somehow establish a means by which the privative clause found in s 474 of the Migration Act 1958 (Cth) ("the Act") can be overcome. In order to overcome that strong provision, the applicant would have to establish that the RRT had failed to comply with one or more of the conditions referred to by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 614-615: the applicant would need to establish that the RRT did not make a bona fide attempt to exercise the powers conferred on it by the Act, or that its decision did not relate to the subject matter of the Act, or that its decision was not reasonably capable of being referable to the relevant statutory powers. In the alternative, the applicant would have to establish that the RRT infringed an "inviolable limitation or restraint" as that expression was used in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228. 9 The mere fact that a more up to date document existed, had been delivered to the Department and was not reflected in the reasons for decision of the RRT would not establish any of those matters. 10 There are further problems with the application for the adjournment. The applicant would need to explain why the point which he may wish to raise was not raised before the primary Judge. But more importantly, as his Honour observed in par 9 of his reasons for judgment, in its detailed statement of reasons the RRT found that significant aspects of the applicant's evidence were "illogical, implausible, and inconsistent with the independent evidence"; that is to say, the RRT did not consider the applicant to be a reliable witness. 11 For all these reasons the application for the adjournment should not be granted. 12 Mr Byrne submits that a notice under s 424A of the Act which was sent by the RRT to the applicant was inadequate because it did not refer to some matters to which the RRT ultimately referred in its decision. There may be some difficulties of construction of s 424A, but what is put by Mr Byrne this morning does not demonstrate that in relation to the ultimate decision of the RRT one of the Hickman conditions was not satisfied or a contravention of the kind mentioned occurred.