VAAU of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1350

FEDERAL COURT OF AUSTRALIA VAAU of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1350 PRACTICE & PROCEDURE – appeal – time for filing and serving notice of appeal - application for enlargement of time – previous unsuccessful application – whether appeal has merit

Migration Act 1958 (Cth) ss 48B, 417, 474 VAAU of 2001 v Minister for Immigration and Multicultural Affairs [2003] FCA 15 referred to Applicant VAAU of 2001 v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 189 referred to VAAU OF 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 890 of 2003 GRAY J 27 OCTOBER 2003 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 890 of 2003

BETWEEN: VAAU of 2001

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE OF ORDER: 27 OCTOBER 2003

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application for an enlargement of time to file a notice of appeal is dismissed. 2. The applicant pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 890 of 2003

BETWEEN: VAAU of 2001

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GRAY J

DATE: 27 OCTOBER 2003

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 By his application, filed on 18 September 2003, the applicant seeks an enlargement of the time within which to file and serve a notice of appeal. He seeks to appeal from a judgment of Finkelstein J, given on 21 January 2003. His Honour dismissed an application by the applicant, seeking relief in relation to a decision of the Refugee Review Tribunal and ordered that the applicant pay the costs of the proceeding (see VAAU of 2001 v Minister for Immigration and Multicultural Affairs [2003] FCA 15). 2 The applicant arrived in Australia on 6 September 1998. On 18 September 1998, he lodged an application for a protection visa. On 27 October 1998, a delegate of the respondent refused to grant a protection visa to the applicant. On 15 November 2001, the Refugee Review Tribunal affirmed the decision of the delegate. The applicant applied to this Court on 28 December 2001. As I have said, the judgment was delivered on 21 January 2003. 3 The time for the applicant to file a notice of appeal expired on 11 February 2003. Fifteen days later, on 26 February 2003, the applicant filed an application for an extension of that time. At that time, there was also filed a draft notice of appeal. This notice of appeal contained only one ground, in the following terms: 'The Learned Primary Judge held that as the Tribunal, in his view, has not erred in law in any respect, it was not necessary to discuss the effect of the issues arising from S 474 of the Migration Act 1958 (Cth) canvassed at the hearing.' 4 The application made on 26 February 2003 was heard by Heerey J on 6 March 2003. His Honour delivered judgment on that day, dismissing the application for an extension of time and ordering the applicant to pay the respondent's costs (see Applicant VAAU of 2001 v Minister for Immigration, Multicultural & Indigenous Affairs [2003] FCA 189). 5 In the course of his reasons for judgment, his Honour dealt with the ground stated in the proposed notice of appeal. His Honour noted that Finkelstein J did indeed find it unnecessary to discuss the effect of s 474 of the Migration Act 1958 (Cth) ('the Migration Act'). This was because his Honour had not found that the Tribunal made any error which might have justified relief of the kinds open to the Court. In the absence of such an error, it was unnecessary to refer to the privative clause in s 474. Accordingly, Heerey J found that the proposed notice of appeal did not raise any matter of substance. 6 His Honour referred to the fact that the applicant, who then appeared by counsel, had expressed a desire to ventilate questions of law before the Full Court. His Honour held that merely identifying questions of law was insufficient; that an applicant had to show at least some possibility that the Full Court would find that the primary judge was in error. In his Honour's view, that had not been done. 7 In the course of his reasons for decision, at [11] Heerey J said: 'As counsel for the Minister pointed out, it is open to the applicant to bring a further application of [sic] extension of time if he is able to point out error.' 8 I note that, at the time of the earlier application for an extension of time, and at the time when the draft notice of appeal was drawn, the applicant was represented by lawyers. There were solicitors on the record for his earlier application and counsel appeared for him on the hearing of it. 9 Between March and September, the applicant appears not to have pursued the question whether he would be able to raise a case of arguable error on the part of Finkelstein J. He pursued alternative means of obtaining the visa he seeks. He made two applications to the respondent for the exercise of discretions pursuant to ss 48B and 417 of the Migration Act respectively. Because of his limited English, which has required him to have the assistance of an interpreter in court today, the applicant obtained assistance from someone in his community with the making of those applications. 10 Only when he received notice that those applications had been unsuccessful did the applicant turn his mind to the question of returning to the Court to seek an enlargement of the time to file a notice of appeal. He did so by means of the application filed on 18 September 2003, together with an affidavit in which he recited the history of the matter. Obviously, he has had assistance with the drawing of that affidavit, although it does not appear who provided him with that assistance. In the affidavit, the applicant refers to some factual issues and requests that the leave to appeal be accepted and that he be permitted to file a further affidavit and material with the assistance of lawyers, who may be able to assist him without charge. In addressing the Court today, the applicant has repeated that he wishes to have the assistance of lawyers. He has indicated that he sought the assistance of Victoria Legal Aid. 11 Attached to the application is a draft notice of appeal, which appears to be in identical form to that on which the applicant relied in his earlier application for an enlargement of time. In particular, the only ground specified is in identical terms to that specified in the earlier notice of appeal. 12 I have examined carefully the judgment of Finkelstein J, with a view to ascertaining whether I can see any possibility of arguable error in his Honour's reasons for judgment. I have not been able to. I have asked the applicant if he can shed any light on the issues that might be raised on his behalf on appeal. Apart from telling me that he needs the assistance of lawyers, the applicant has only been able to advance issues of fact. I have endeavoured to acquaint the applicant with the fact that it is too late for him to raise issues of fact. In essence, it was for the Refugee Review Tribunal to find the facts. Even at first instance, the Court could only set aside the decision of the Refugee Review Tribunal if it were satisfied that there had been an error of a kind that amounts to jurisdictional error. It was never open to the Court simply to review for itself the facts and to decide whether the Tribunal had made errors in its findings. Still less is it open to the Court to engage in that kind of process on appeal. 13 For these reasons, I am of the view that the applicant has failed to establish that his proposed appeal has any merit whatsoever. In the absence of such merit, I am not able to exercise the discretion to grant him an enlargement of time. For these reasons the application will be dismissed. 14 The orders of the Court will be: 1. The application for an enlargement of time to file a notice of appeal is dismissed. 2. The applicant pay the respondent's costs of the application.