FEDERAL COURT OF AUSTRALIA Applicant A168 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 878 PRACTICE AND PROCEDURE – appeals – notice of appeal – time within which notice of appeal must be filed and served – extension of time to file and serve notice of appeal – exercise of discretion to extend time based on 'special reasons' – prospects of success. Jess v Scott (1986) 12 FCR 187 applied NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 144 cited Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 cited APPLICANT A168 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 69 of 2004 LANDER J 25 JUNE 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 69 OF 2004 BETWEEN: APPLICANT A168 OF 2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LANDER J DATE OF ORDER: 25 JUNE 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application for leave to amend the proposed notice of appeal is refused. 2. The application for leave to file and serve a notice of appeal is refused. 3. The applicant to 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 SOUTH AUSTRALIA DISTRICT REGISTRY S 69 OF 2004 BETWEEN: APPLICANT A168 OF 2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LANDER J DATE: 25 JUNE 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application pursuant to O 52 r 15(2) of the Federal Court Rules for an extension of time within which to appeal from a decision of a judge of this Court. The application before the primary judge sought a review of a decision fo the Refugee Review Tribunal (RRT). The judgment complained of was given on 12 March 2004. The notice of appeal was filed on 8 April 2004. Order 52 r 15 requires the party intending to appeal to file and serve the notice of appeal within 21 days of the date when the judgment appealed from was pronounced. This notice of appeal was filed a few days out of time. 2 On 23 April 2004 the respondent filed a notice objecting to the competency of the appeal on the ground that the judge's decision was interlocutory and that leave was required but has not been obtained. I think that objection has been abandoned. 3 On 24 May 2004 I gave directions to the parties to file and serve any affidavit material upon which they might intend to rely. I also directed the parties to file and serve their submissions. Neither party filed any affidavits. Both parties filed submissions, although the applicant's submissions were late. The applicant's ground of appeal from the decision of Mansfield J is that the member of the RRT was biased. 4 It is claimed: '2. GROUNDS a. Ms Susan McIllHatton, the presiding member of the Refugee Review Tribunal had one month before heard [sic] the application of Roshan Kumar Lama (Roshan) who had also claimed membership of the HURPEC, a human rights group in Nepal. In the Tribunal's decision in the matter of Roshan the Tribunal said: "I am mindful of the need for caution in not requiring an unreasonable level of knowledge or sophistication from an appellant about a political group with which they claim to be involved …………… or the identity of the current leader." b. Those exact words were also used by the same decision maker when adversely deciding the application of the appellant which was heard about one month later. The appellant therefore contends that the decision maker could not have arrived at the unfavourable decision in his case without the decision maker referring to her previous adverse decision concerning Roshan. c. The appellant contends that at that stage (at the least) it became evident to the decision maker that it was inappropriate for her to continue deciding the matter and that it was incumbent upon her to disqualify herself. d. The fact the [sic] she did not so do, the appellant contends, evidences bias on the face of the record. 2. As soon [sic] His Honour's judgment becomes available the appellant will apply to amend his appeal.' 5 Order 52 r 15(2) provides that the Court 'for special reasons may at any time give leave to file and serve a notice of appeal'. 6 The subrule is curiously worded. One would have thought it would have been better merely to give the Court power, if special reasons exist, to extend the time within which a notice of appeal may be filed and served. In any event, the subrule permits the Court to allow a notice of appeal to be filed and served, notwithstanding that the time within which the notice of appeal should have been filed and served has passed, and notwithstanding that no application, made by notice upon motion, was lodged within that time. 7 The Court will exercise its discretion under O 52 r 15(2) if satisfied there are 'special reasons' to do so. In Jess v Scott (1986) 12 FCR 187 at 195, the Full Court said: 'What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify a departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.' 8 That decision requires the party seeking the extension of time to establish special reasons in the sense that it would be appropriate, because the circumstances warrant it, for the Court to exercise its discretion to enlarge the time for appeal past the ordinary time of 21 days. 9 On this application no explanation has been given for the delay. The present solicitors were not the solicitors before the primary judge. The failure to offer any explanation would not necessarily be fatal in a case such as this where the delay is only a few days. However, where no explanation is offered for the delay, the fact that the delay was only a few days does not of itself provide special reasons. 10 The original ground of appeal was that the RRT was biased. That was not a ground of appeal before the primary judge nor was it agitated before the primary judge. Consequently it was not addressed by the judge. 11 In any event, no effort has been made to establish the factual substratum upon which the ground is based. The facts alleged in paragraph 2(a) of the notice of appeal have not been proved on the application. It would be impossible to conceive that the applicant has any prospects of success on that ground, where the applicant did not argue the matter before the primary judge and has not attempted to prove the facts upon which a claim of bias is based. 12 The applicant's solicitor, Mr Newman, recognised the difficulty facing the applicant during the argument which he advanced on behalf of the applicant. Mr Newman sought leave to amend the notice of appeal to substitute the following ground: 'The tribunal, in basing part of its decision upon the Treaty of Peace and Friendship between India and Nepal, failed to ask itself whether India's obligation to protect Nepalese nationals was abrogated in circumstances where the applicant first came to Australia and then sought asylum within India's borders and, in so doing, failed to exercise jurisdiction.' 13 I did not rule on that application during argument. I should say that no notice of the application to amend the proposed notice of appeal was given. The applicant's written submissions in support of the application for an extension of time within which to appeal do not address the proposed amended ground of appeal. 14 Indeed, the submissions do not refer to the primary judge's decision. They address only the RRT's reasons. The applicant seems, with respect, to overlook that any appeal brought is from the primary judge's order, and the applicant must demonstrate error on the part of the primary judge. 15 There is no criticism whatsoever of the primary judge's reasons. It is difficult to think how an appeal as it is framed in the proposed amended ground of appeal could succeed. The proposed amended ground was not argued before the primary judge. In any event, it is difficult, with respect, to understand precisely the applicant's complaint about the Tribunal's reasons. 16 The applicant is a national of Nepal. He claims that he had a well‑founded fear of persecution by the Nepalese authorities and by the Maoist insurgents in that country. He claimed that the authorities would persecute him because they believed he was a Maoist. He claimed that the Maoists would persecute him because they believed he was a government sympathiser. 17 The applicant was a human rights worker in Nepal between 1990 and 2002, when he left Nepal. The RRT found that when the applicant was in Nepal he was at no risk of persecution as a human rights worker. In particular, the RRT said: 'Nor do I accept that he was imputed with an adverse political opinion by either the authorities or the Maoists for exposing their respective human rights violations. Further, I am not satisfied on the evidence before me that he faces a real chance in the future of persecution by the authorities, the Maoists or indeed, anyone else.' 18 Specifically, the RRT found that it was not satisfied on the evidence that the applicant had a well-founded fear of persecution for a Convention reason at the hands of the authorities or the Maoists. The RRT found, in fact, that the applicant wanted to remain in Australia until things had normalised in Nepal. 19 Those findings would have been enough to dispose of the applicant's application for a protection visa. However, the RRT also found that India was willing and able to provide effective protection to Nepalese nationals living in India. The applicant claims in his submissions that the finding that India would be willing and able to protect the applicant was no reason to dismiss the application for a protection visa. 20 The applicant's submissions proceeded on the basis that the High Court has recently granted leave to appeal from a decision of this Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 144, to allow the High Court to consider the correctness or otherwise of the decision of the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543. 21 The applicant's submissions are that the whole application should be adjourned pending the outcome of the High Court hearing the appeal in the matter in which it has granted special leave to appeal. 22 In my opinion, the applicant's submissions overlooked the positive finding that the applicant is not a refugee because he has not satisfied the RRT that he has a well‑founded fear of persecution. In those circumstances, whatever the result of the appeal in the High Court in the matter to which I have referred, the applicant's appeal to the Full Court of this Court would have to fail. 23 In my opinion, the applicant has not demonstrated that he has any prospects of success on appeal. 24 The application for leave to amend the proposed notice of appeal is refused. The application for an extension of time within which to appeal or, more precisely, the application for leave to file and serve a notice of appeal is also refused. 25 The orders of the Court will be: 1. The application for leave to amend the proposed notice of appeal is refused. 2. The application for leave to file and serve a notice of appeal is refused. 3. The applicant to pay the respondent's costs of the application. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 6 July 2004 Counsel for the Applicant: M Newman Solicitor for the Applicant: Newman and Associates Counsel for the Respondent: M Roder Solicitor for the Respondent: Sparke Helmore Date of Hearing: 25 June 2004 Date of Judgment: 25 June 2004