FEDERAL COURT OF AUSTRALIA Khanna v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 204 CHANDER KHANNA V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS N185 of 2004 JACOBSON J 1 MARCH 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 185 of 2004 BETWEEN: CHANDER KHANNA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: JACOBSON J DATE OF ORDER: 1 MARCH 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The time for filing an amended notice of appeal be extended to close of business on 1 March 2004. 2. The notice of appeal is to be in terms of the notice attached to the affidavit in support of the application filed on 18 February 2004, save that paragraph 6 of the grounds is to be deleted. 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 185 of 2004 BETWEEN: CHANDER KHANNA APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: JACOBSON J DATE: 1 MARCH 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application under Order 52 Rule 15(2) for an extension of time to file a notice of appeal from a decision of Federal Magistrate Scarlett delivered on 27 January 2004. The rule provides that "special reasons" must be shown. It is well-established, as was said in Jess v Scott (1986) 12 FCR 187 at 195 that what is required are special reasons which distinguish the case from the usual case according to which the time is 21 days. 2 The affidavit evidence here discloses that the delay was a very short one. Indeed, the delay was only one day. It resulted from a miscalculation on the part of applicant's solicitor of the time period for the filing of a notice of appeal. The time period in fact, expired on 17 February 2004 but the employed solicitor who was handling the matter calculated that the time expired on 18 February 2004. The same mistake was made by the principal in the firm. 3 I note that the facts therefore, are similar to those which arose in Jess v Scott where there was only a 1-day delay in seeking to file the notice of appeal. In that case the misunderstanding arose from the fact that the solicitor misunderstood or misread the date on which judgment was given. 4 The Minister's solicitor has very fairly conceded that the Minister does not claim to be prejudiced as a result of the very short delay. 5 It therefore follows that I can be satisfied that special reasons have been established and the only real question which arises is whether I ought to exercise my discretion to extend the time for filing the notice of appeal. Mr Howen of counsel who appeared for the applicant, pointed to a decision of Branson J in Howard v Australian Electoral Commission [2000] FCA 1767 where her Honour stated that the factors to be taken into account in the exercise of the discretion include the importance of the question which is sought to be raised and the prima facie strength of the proposed ground of appeal. 6 Her Honour also mentioned the question of the bona fides of the appeal as a factor to be taken into account but there is no suggestion here that the appeal is not brought bona fide. 7 The issue which arose before the learned Federal Magistrate was an issue of construction of clause 845.212 of Part 845 of Schedule 2 to the Migration Regulations 1994 . The learned magistrate heard an application for a review of a decision of the Migration Review Tribunal and had to determine as a matter of construction, whether words in the regulation which required the applicant to have been "in Australia" for at least nine months during the period before the application meant physically in Australia or ordinarily resident in Australia. 8 Mr Howen conceded that the decision of the magistrate is well structured and well reasoned. That seemed to me to be quite plain from a reading of the judgment in which the magistrate considered fully and very fairly all of the arguments of counsel who appeared before him on the application for review. 9 The learned magistrate was of the view that the regulation was plain in its meaning and that there were no competing contentions of the kind which Mr Howen put forward before the magistrate to suggest that the regulation was ambiguous. Nevertheless, Mr Howen submitted to me today that the point is an arguable one, in particular because there are no precedents on this question. He pointed out that both he and counsel who appeared for the Minister were unable to find any existing authority on the point and he said that the point is an important one and it is desirable that the matter be considered by a judge of the court so that there can be, without any disrespect to what the learned magistrate had to say, a more authoritative determination on the issue. 10 Ms Burnett submitted that the appeal is without merit and that the point is not arguable. It would be undesirable for me to express, and indeed I do not express, any final view on this issue. Nevertheless I do think there was force in what Ms Burnett put to me today. That should not be of course taken to be any final expression of opinion as to what may happen on appeal and it will be a matter for the judge who hears the appeal to consider the question afresh. 11 However, it does seem to me that where an application for an extension of time is made after a delay of only one day the court ought to adopt a more flexible approach than it might otherwise do. This I think is particularly apt where the issue is one of construction and where at present, apart from the decision of the learned Federal Magistrate, there is no other authority on the question. Mr Howen says that the points is an important one and Ms Burnett has not put a submission to the contrary to me on that point. In all of those circumstances it is my view that it is appropriate to exercise my discretion under Order 52 rule 15(2) to extend the time for filing a notice of appeal. 12 The draft notice of appeal which was annexed to the affidavit in support of the application included paragraph [6] which provided for the appellant to seek leave to file an amended notice of appeal encompassing further grounds following the obtaining of a transcript of the proceedings at first instance before the Federal Magistrate. I do not think it is appropriate that the notice of appeal contain that paragraph. That is not to say that the applicant would be precluded from amending the notice of appeal if he thought fit to do so but it does seem to me to be unlikely that any further amendments would be required bearing in mind that the issue is one of construction and that that is the basis upon which I have granted the extension of time to file the notice of appeal. 13 I have been told that the notice of appeal can be filed very quickly, indeed that it can be filed today and accordingly the order that I will make is that pursuant to Order 52 rule 15(2) the time for filing an amended notice of appeal be extended to close of business on 1 March 2004. The notice of appeal is to be in terms of the notice attached to the affidavit in support of the application filed on 18 February 2004, save that paragraph [6] of the grounds is to be deleted. 14 I will direct that the matter be sent to the registry for the appropriate administrative steps to be taken for the matter to be placed in the docket of the docket judge and for a directions hearing to be appointed and for any other necessary steps for the matter to be listed for hearing on the appeal. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 1 March 2004 Counsel for the Applicant: A Howen Solicitor for the Applicant E Khan Counsel for the Respondent: S Burnett Solicitor for the Respondent: Clayton Utz Date of Hearing: 1 March 2004 Date of Judgment: 1 March 2004