WAHU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 639

FEDERAL COURT OF AUSTRALIA

WAHU v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 639 Federal Court Rules O 52 r 15

Jess v Scott (1986) 12 FCR 187 WAHU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W111 of 2003 RD NICHOLSON J 10 JUNE 2003 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W111 OF 2003

BETWEEN: WAHU

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 10 JUNE 2003

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application be held over pending the applicant filing and serving by 20 June 2003 an amended notice of appeal identifying with precision the allegation of jurisdictional error orally identified to the Court and any other submissions thereon on behalf of the respondent be filed and served within a further 5 days. 2. Costs be reserved. 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 W111 OF 2003

BETWEEN: WAHU

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: RD NICHOLSON J

DATE: 10 JUNE 2003

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant seeks an extension of time to file and serve a notice of appeal. He seeks to support that by an affidavit sworn on 27 May 2003 before a Justice of the Peace, that having occurred at Baxter Detention Centre. The notice of appeal is directed to the decision of Driver FM given on 16 April 2003. Broadly the notice contends that his Honour erred in law in concluding there was no jurisdictional error on the part of the Refugee Review Tribunal ('the Tribunal') when it affirmed a delegate's decision to refuse the grant of a protection visa to the applicant. 2 The application falls to be considered in the context of O 52 r 15 of the Federal Court Rules. That provides that the time limit of 21 days there provided for filing such a notice may not be applicable if the Court for 'special reasons' gives leave to file and serve it. The approach to those words and that provision appears in Jess v Scott (1986) 12 FCR 187 at 195. 3 The case for the respondent is that the Court must consider two aspects. The first is whether there is evidence of circumstances that may establish special reasons. The second is whether there is a real prospect of the applicant succeeding in his appeal in any event. 4 I do not consider that the first element is really in doubt on the facts. That is, that the circumstances do establish special reasons. The applicant did not receive a written copy of the judgment until 6 May 2003, by which time there was only one day in which he could, within the time limit, file and serve the notice of appeal. He was at that time in custody and the difficulties of obtaining the requisite forms and access for filing appear from the papers. 5 The second aspect, that is whether there is any reasonable prospect of success, is the issue on which this application turns. No issue is identified with precision in the notice of appeal. It was therefore submitted for the respondent that this aspect of the tests applicable to the exercise of the discretion could not be satisfied. However, in response, the McKenzie friend assisting the applicant, Mr Arndt, identified orally to the Court that the issue which had been put to the Federal Magistrate and not considered by him was that the genuineness of a facsimile communication concerning the applicant's uncle had not been put to the applicant so that he could make submissions on it before the Tribunal made a finding on it. 6 The matter is addressed by the Federal Magistrate, if at all, at [7] and [8] of his reasons. That in its terms addresses whether there was a failure to make appropriate inquiries as to the truthfulness and accuracy of the contents of the facsimile. No issue of procedural fairness arises in that respect. However, the issue identified by Mr Arndt is not there addressed. 7 Counsel for the respondent accepts that as the issue has recently been reserved for judgment by a Full Federal Court it is arguable that failure to give an opportunity to the applicant to make submissions concerning the genuineness of the document is an issue of failure of procedural fairness. That would be an issue of jurisdictional error. It would show that there was a genuine issue for argument so that it could not be said the applicant had no real prospect of succeeding. 8 However, the point was taken by counsel for the respondent that, apart from the oral identification of the issue, it has not been formulated with precision in the notice of appeal. I accept that submission. The opportunity should be given to the applicant to file an amended notice of appeal identifying with precision the point of procedural fairness as a failure of jurisdiction. Subject to any submissions I may receive on behalf of the respondent on the adequacy of the substituted notice, it would then be appropriate in the event of the issue being identified with precision for the discretion to be exercised pursuant to O 52 r 15 to extend the time to file the amended notice of appeal. I will therefore hold over to chambers the making of my decision pending the receipt of the substituted notice of appeal and any submissions in relation to it. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.