FEDERAL COURT OF AUSTRALIA Applicant S1138 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1052 PRACTICE AND PROCEDURE - Application for extension of time to file and serve application for leave to appeal and notice of appeal - O 52 r 15 of Federal Court Rules - Exercise of discretionary power - "special reasons" - applicant represented by legal advisors - no reasonable explanation of delay - applicant elected to pursue alternative remedy to appeal - proposed arguments on appeal have no prospect of success - Refugee Review Tribunal no reasonable explanation of long delay - application dismissed. Migration Act 1958 (Cth) s 91R Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1 cited N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 discussed Hughes v National Trustee Executors and Agency Co of Australasia Ltd [1978] VR 257 cited Gallow v Dawson (1990) 93 ALR 479 cited Jess v Scott (1986) 12 FCR 187 discussed APPLICANT S1138 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1088 OF 2004 TAMBERLIN J SYDNEY 17 AUGUST 2004 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1088 OF 2004 BETWEEN: APPLICANT S1138 OF 2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: TAMBERLIN J DATE OF ORDER: 17 AUGUST 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: The application is dismissed with costs. 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 NSD 1088 OF 2004 BETWEEN: APPLICANT S1138 OF 2003 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: TAMBERLIN J DATE: 17 AUGUST 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for an extension of time to file and serve an application for leave to appeal and a notice of appeal from a judgment of Sackville J given on 21 August 1998. 2 Under O 52 r 15 of the Federal Court Rules ("FCR"), the time for an appeal is twenty-one days from the time when the judgment appealed from was pronounced. In the present case, the application for extension of time was not filed until 13 July 2004. 3 The Court, under O 52 r 15(2), may "for special reasons" give leave to file and serve a notice of appeal at any time. This rule gives a discretionary power. There must be grounds sufficient to justify departure in the particular circumstances from the ordinary rule prescribing a period within which an appeal must be filed and served. The expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. background 4 The applicant arrived in Australia in 1995, and in August of that year lodged an application for a protection visa. On 23 November 1995, he attended an interview before the Department of Immigration and Multicultural Affairs, and on 18 June 1996, a Ministerial delegate made a decision refusing to grant this application. In July 1996, the applicant applied to the Refugee Review Tribunal ("the RRT") for review. In February 1997, the applicant's wife lodged an application for a protection visa and in May 1997, a Ministerial delegate made a decision refusing the wife's application. She thereupon applied to the RRT for review of the delegate's decision. 5 In October 1997, the applicant attended a hearing before the RRT. A further hearing by the RRT was held, at which the applicant and his wife were present, in November 1997. On 24 November 1997, the RRT affirmed the delegate's decisions refusing to grant the applicant and his wife protection visas. 6 In December 1997, the applicant and his wife applied to the Federal Court for judicial review of the RRT decision. The matter was heard in July 1998, and Sackville J handed down judgment on 21 August 1998. 7 The applicant then joined a class action in the High Court, and no appeal was taken from the judgment of Sackville J. It appears that the applicant instructed his solicitors to file an application to the High Court for a draft order nisi in May or June 2003, following which the matters were remitted to the Federal Court. On 20 February 2004, the Federal Court refused to grant the applicant a draft order nisi. Shortly thereafter, the applicant appealed to the Full Court of the Federal Court from this decision of the Federal Court of 20 February 2004. On 11 March 2004, the applicant discontinued the appeal in the Full Court and filed an application in the Federal Magistrates Court for judicial review of the decision of the RRT of 24 November 1997. On 12 July 2004, the applicant filed in the Federal Court an application for an extension of time to file and serve a notice of appeal from the decision of Sackville J of 21 August 1998. issues 8 The applicant contends that there are three issues for the applicant to address, namely: (a) whether there was an error in Sackville J's decision of 21 August 1997; (b) whether the applicant should be permitted to raise two errors that appear on the face of the decision of the RRT, even though these were not raised before Sackville J, as new grounds on appeal from his Honour's decision; and (c) whether the applicant should be permitted an extension of time to appeal from Sackville J's decision, in the light of the delay of six years. alleged errors by the RRT not raised before the primary judge 9 The applicant says there are two jurisdictional errors in the decision of the RRT but concedes that neither error was raised before Sackville J. The first error is said to relate to a rejection by the RRT of a letter from a prominent organisation in Bangladesh, which the RRT treated as fabrication and of no importance. The alleged error in the RRT decision is that it never raised its concern that the letter was fabricated with the applicant, and so he was deprived of an opportunity to comment. 10 The second error which was not argued before Sackville J, but which is claimed to exist on the face of the RRT decision, is that the RRT erred in stating that persecution involves systematic conduct aimed at an individual or group of people. The applicant relies on principles said to be stated in Minister for Immigration and Multicultural Affairs v Ibrahim (2000) 204 CLR 1. It is said that the RRT ignored some of the incidents stated in the materials and deciding that the harm suffered by the applicant did not amount to persecution. It was a failure to take into account a relevant matter and constituted jurisdictional error. reasoning on application for extension of time 11 The principles concerning an extension of time for an appeal were considered by the Full Court in N1202/01A v Minister for Immigration and Multicultural Affairs (2002) 68 ALD 21 at [8]-[24]. The Court in that case stated that the discretion to extend time is given for the purpose of enabling the Court to do justice between the parties. If the delay is short and no injustice will be occasioned to the respondents, justice will usually be done if the extension of time is granted. However, an extension of time within which to file an appeal will not be granted without consideration being given to whether there is a respectable argument to be raised in the proposed appeal: see Hughes v National Trustee Executors and Agency Co of Australasia Ltd [1978] VR 257 at 262, and Gallow v Dawson (1990) 93 ALR 479 at 480. 12 The Court in 1202/01A referred to the Full Court decision in Jess v Scott (1986) 12 FCR 187 at 195, where the Court said: "It should not be overlooked that r 15(2) enables leave to be given 'at any time'; the 'special reasons' relevant to such a power cannot but describe an elastic test, suitable for application against a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. 'Special reasons' must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served." 13 In the present case, the applicant did not file a notice of appeal from the judgment of Sackville J, and decided to join a High Court class action rather than pursue an appeal from the judgment of Sackville J. This is not a case where the applicant was without legal assistance, because on the appearance before Sackville J the applicant was represented by counsel and solicitors. The facts are consistent with a view that the applicant decided not to appeal but to pursue an alternative remedy. In my view, no special reasons have been made out or satisfactory explanation given for the extremely long delay in the present case. The applicant attributes his failure to appeal to the fact that his lawyer did not advise him about any appeal with respect to the decision of Sackville J. This is a matter which I have taken into account in the exercise of my discretion. 14 Another relevant consideration is the fact that the applicant does not claim any error in the judgment of Sackville J as a basis for the appeal, but rather contends that there are errors on the face of the RRT decision of 24 November 1997, which warrant the Court granting an extension of time in order to raise these errors on appeal. As noted above, the first ground is that the RRT failed to provide procedural fairness to the applicant, because the applicant did not have an opportunity to address the RRT's rejection of a letter which purported to be from the Bangladesh Hindu Buddha Christian Oikya Parishad (BHBCOP). The RRT reasons refer to this letter as part of a fabrication by the applicant in order to manufacture a profile which he thought would lead the RRT to find that he was a refugee. In so doing, it gave reasons for rejecting the applicant's claims. These were that his claims were not made earlier in his application for a protection visa at his interview, nor in his application for review to the RRT. It also considered that other aspects of a statutory declaration made by the applicant were similar to a statutory declaration of another applicant. The RRT member considered that the applicant's later claims were significantly similar to those made by a Bangladesh Christian who was successful before the RRT, largely because the wording used in both cases to describe incidents was identical. This led the RRT member to conclude that the applicant had tailored his evidence. In my view, no error has been shown on the part of the RRT member in not accepting the letter and relying on the rejection of the claims made in the statutory declaration of 29 September 1997. 15 The second error alleged in the RRT reasons concerns the way in which the RRT member dealt with the question of persecution, and in particular, the conclusion regarding the need for systematic conduct. Counsel for the applicant referred to the decision in Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [88]-[101]. The contention was that the RRT applied an erroneous interpretation of the expression "systematic conduct". 16 In the RRT reasons the member said in relation to persecution: "However, because persecution involves systematic conduct aimed at an individual or at a group of people, 'it is not enough there be fear of being involved in incidental violence as a result of civil or communal disturbances.' It is only in situations where 'a community is being systematically harassed to such a degree that the word persecution is apt', that an individual member of that community may have a well-founded fear of persecution … Whilst I accept that Christians in Bangladesh are discriminated against and from time to time targeted in outbursts of communal violence, I accept the independent evidence set out at pp 13-14 or [sic] this decision which indicates that the treatment of Christians in Bangladesh is neither systematic or serious enough to amount to persecution within the meaning of the Convention. I am of the view that the incident on 12 February 1995 was an isolated incident of communal violence of which [the applicant] was unfortunately the target. I consider this to have been an isolated incident and do not consider that it amounts to persecution." 17 This extract indicates that the RRT member has applied the correct test and has weighed the evidence of the applicant against the country information, which is information from sources other than the applicant, and concluded as a matter of fact that this was an isolated incident, and that it was not sufficiently serious to amount to persecution. If an appeal were to be made by the applicant the Court would have to apply the present law which defines "persecution" in s 91R of the Migration Act 1958 (Cth) ("the Act") as involving serious harm and systematic conduct. 18 In addition, the RRT member considered that the applicant's fabrication of the claims in his statutory declaration cast doubts on his credibility generally. Nevertheless, the member accepted that the applicant was physically assaulted, but concluded that the incident was consistent with the independent evidence concerning sporadic outbursts of communal violence against Christians and members of other minority groups. 19 I am not persuaded that there is a reasonable argument in the present case that the RRT member misunderstood or misapplied the principles relating to persecution and the requirement that there be systematic conduct. 20 The applicant's prospects of success on the appeal based on the new arguments, in my view, are not sufficient to outweigh the countervailing considerations against the grant of leave. conclusion 21 Accordingly, having regard to the length of the delay, the lack of satisfactory explanations, the decision to pursue another avenue of relief, the failure to raise the matters now relied on before Sackville J, the absence of any submission that Sackville J erred in any way in his reasons for judgment, and the circumstance that the applicant had recourse to legal advice, I am not persuaded that I should exercise my discretion in favour of granting an extension of time in the present case. 22 For these reasons, and having regard to these considerations, the application for an extension of time within which to appeal is dismissed with costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 17 August 2004 Counsel for the Applicant: Ben M Zipser Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 August 2004 Date of Judgment: 17 August 2004