FEDERAL COURT OF AUSTRALIA S126 of 2004 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 723 MIGRATION – no point of principle S126 OF 2004 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1762 OF 2004 MOORE J SYDNEY 3 JUNE 2005 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1762 OF 2004 BETWEEN: S126 OF 2004 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MOORE J DATE OF ORDER: 3 JUNE 2005 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application to extend time in which to seek leave to appeal be refused. 2. The applicant pay the respondent's 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 1762 OF 2004 BETWEEN: S126 OF 2004 APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: MOORE J DATE: 3 JUNE 2005 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for an extension of time filed on 29 November 2004 seeking leave to appeal against a judgment of Wilcox J. On 27 October 2004 his Honour refused an application for an order nisi in relation to a decision of the Refugee Review Tribunal ('the Tribunal') affirming a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') not to grant the applicant a protection visa. 2 The applicant claims to be a Pakistani citizen. He arrived in Australia on 13 July 1999. He lodged an application for a protection visa on 30 May 2000. A delegate of the Minister refused that application on 26 June 2000. The applicant applied to the Tribunal for review of that decision on 25 July 2000. The Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection visa on 10 March 2003. On 5 April 2004 the applicant filed a draft order nisi in the High Court which was then remitted to this Court on 10 May 2004 by consent. 3 The following emerges from the reasons for judgment of Wilcox J of 27 October 2004. In this Court, Lindgren J made directions at a hearing on 8 September 2004, that the applicant file an amended application (by 6 October 2004) giving complete particulars of each ground and fixing the matter for hearing (on 27 October 2004). An amended application was never filed. The matter was listed before Wilcox J on 27 October 2004 for hearing because Lindgren J was not available to hear the matter on that date. When the matter was called, there was no appearance for the applicant. However, as Wilcox J was about to dismiss the application, Mr Kumar, a solicitor, appeared for the applicant. He explained he had been approached at 7.00 pm the night before to appear that day but had only received a copy of the Tribunal's reasons for decision that morning. He sought an adjournment. Wilcox J refused to grant the adjournment, noting in his reasons that the applicant had had four weeks to prepare an amended application but had not done so. Wilcox J also noted that the applicant had not sought legal assistance, as it seemed to his Honour, until the "very last moment". As will become apparent later in these reasons, this may not have been the case. 4 In his reasons for judgment, Wilcox J referred to the Court's commitment to do everything to meet an allocated date, to the point of changing the judge hearing the matter. There was nothing before his Honour to indicate any relevant difficulty preventing the applicant being prepared by the date fixed for hearing. Notwithstanding, his Honour offered the applicant's solicitor an opportunity to put an argument which might indicate there was a real legal issue sought to be raised in the proceedings. Mr Kumar said it seemed there was no jurisdictional error and was unable to comment on what argument there might be. His Honour explained at [9]: I do not think it is right for the Court to burden itself with allocating two different hearing dates to a person who does not take the trouble to look after his own interests, and in any event, would seem not to have any case. His Honour ordered that O 51A r 5(1) not apply to the application and refused the application for the order nisi. Application for extension of time to file and serve notice of appeal 5 Since filing his application for an extension of time the applicant has engaged a different solicitor, Mr Silva. At the hearing before me, the applicant relied on a further amended draft notice of appeal and an affidavit filed on 2 March 2005. His "final submission" was filed the same day. The applicant had previously filed an affidavit on 16 February 2005. 6 In the affidavit filed on 16 February 2005 the applicant said he had engaged Mr Kumar a week before the hearing. The applicant said he had been looking for a lawyer from about a week after the directions hearing "who would suit [his] financial capacity". He paid Mr Kumar $1000 and gave him the court book. He attended the office of Mr Kumar on the morning of 27 October 2004 and paid him the balance of monies outstanding, $500. At that time, the applicant was anxious that they were going to be late for court but Mr Kumar assured him they would arrive in sufficient time. When they arrived at court Mr Kumar told the applicant to wait outside. 7 In the affidavit filed on 2 March 2005 the applicant set out what occurred following the dismissal of his application by Wilcox J. He received the judgment on 16 November 2004. Mr Kumar told him he could appeal within 28 days of that judgment and that he had until 24 November 2004 to lodge a notice of appeal. On 24 November 2004 Mr Kumar told the applicant that he was out of time and that he would need to make an application for an extension of time to lodge the appeal. Mr Kumar repeatedly delayed the preparation of the application. Finally, the applicant went to him on 29 November 2004 and got the forms and lodged this application. Grounds of the application for extension of time and leave 8 In the further amended draft notice of appeal the applicant identified five grounds. The first was that Wilcox J erred in dismissing the application based on a fact that did not exist, namely that the applicant had only sought legal assistance at the very last moment. 9 The second ground was: The Primary judge erred in that where the applicant was in the nature of an unrepresented litigant (in practical terms) it was the duty of the court to look at the Tribunal's decision to find obvious errors before dismissing the case. The solicitor who appeared for the applicant only asked for adjournment and it was obvious at that time that he had no time for preparation. 10 The third ground was that Wilcox J erred in holding that the applicant "would seem not to have any case". The applicant added "[t]he Applicant does have a reasonable case based on the grounds below". 11 The fourth ground of appeal states "The Tribunal made jurisdictional error as it made findings without evidence". Under the heading "particulars" was a reference to a finding of the Tribunal that there was "no evidence that ordinary members of the PML(N) [Pakistani Muslim League led by Nawaz Sharif] were targeted for harm by reason of their membership of the PML". This is followed by extracts from the Tribunal's decision which one might infer are alleged to be contradictory. The applicant then set out the Tribunal's statement that "the country information suggests that the PML(N) is of little current interest to the government due to its diminished support and poor election results". This was followed again by another extract which one might infer is alleged to contradict it. 12 The fifth ground was that there was jurisdictional error because the Tribunal made findings with scarcely any evidence and thus, "it" was unreasonable in a Wednesbury sense. The particulars of this ground were extracts from parts of the Tribunal's reasons for decision concerning the applicant's knowledge of party politics. The further amended notice of appeal concluded by stating that it was unreasonable for the Tribunal to expect the applicant to have a "far greater knowledge of party politics and discuss them" in circumstances where he had only claimed to be an office bearer in a small branch. 13 The applicant's final submissions, filed 2 March 2005, addressed the reason for the delay in filing a notice of appeal, the error on the part of the Wilcox J in dismissing the matter and the strength of the applicant's case. In relation to the delay, the applicant's solicitor, Mr Silva, submitted that this was explained in the affidavit filed on 2 March 2005, referred to above (at [7]). 14 In relation to the error on the part of Wilcox J, he referred to the first three grounds. In relation to the ground that the primary judge erred in dismissing the application based on a fact that did not exist, the applicant repeated the particulars in the notice of appeal. He added only that the court has a wide discretion to admit further evidence on appeal (see CDJ v VAJ (1998) 197 CLR 172) and that it was possible that a court hearing the appeal would consider the affidavit of 16 February 2005 relevant to the appeal. 15 The second ground was that there was a duty of the Court to look at the Tribunal's decision to find obvious errors. In relation to this ground, the applicant submitted that because the applicant's solicitor had asked for an adjournment, purportedly having had no time to prepare the case, the applicant was "in practice unrepresented in the sense of having someone to argue the merits of his case". In such circumstances, the applicant submitted, the Court was obliged to undertake the task of examining the relevant material and forming a view as to whether there was any arguable ground but had failed to do so. In his submissions, the applicant simply repeated ground three as it appeared in his further amended notice of appeal. In relation to the strength of the applicant's case, the fourth and fifth grounds were repeated. Two sentences were added to explain how the extracts were contradictory. 16 The submission of the Minister set out the principles said to govern the grant of leave to appeal and referred to a judgment of the full court of the Supreme Court of Victoria in Niemann v Electronic Industries Ltd [1978] VR 431. Those principles were first, whether in all the circumstances, the decision was attended by sufficient doubt to warrant its reconsideration by the full court. Secondly, whether substantial injustice would result if leave were refused supposing the decision to be wrong. 17 The Minister submitted that Wilcox J clearly treated the matter as an application for an order nisi and that it was open for his Honour not to consider whether an order absolute should have been made. The submission noted that Mr Kumar admitted that it seemed there was no jurisdictional error and that the applicant had failed to explain his failure to identify an arguable case in the court below. The Minister submitted that, having regard to Mr Kumar's presence and submissions, it had been open to Wilcox J to conclude the applicant had only sought legal assistance at the very last moment. In any event, it was submitted, the complaint about that finding is misconceived as the application was dismissed because no arguable case was demonstrated. 18 The Minister's submission noted that refusal to grant an adjournment involves an exercise of judicial discretion. It was submitted that this Court, in its appellate jurisdiction, ought not interfere unless the decision is attended by some error of law or logic, or unfairness, apparent on the face of the reasons or implicit in the result. It was submitted that none has been demonstrated. The Minister submitted that even accepting the applicant instructed Mr Kumar a week before the hearing, no error of fact finding is demonstrated because there was no evidence of this before his Honour. The Minister submitted it was not demonstrated that his Honour's refusal to grant the adjournment was so unreasonable or unjust as to warrant appellate review. 19 The Minister summarised the Tribunal's reasons for decision and submitted that its findings were open to it on the material. There was no substance to the applicant's last three grounds in the draft notice of appeal that he had an arguable case. The respondent noted that the applicant had been aware when judgment was given that his application had been unsuccessful. While he lacks knowledge of law and practice, it was nevertheless his responsibility to comply with Court rules. For these reasons, the respondent submitted, there was no good explanation for the delay. 20 I turn now to consider the issues raised in this application. It is not apparent to me that Wilcox J erred in the exercise of a discretionary power to refuse an adjournment. Whatever the true facts were, his Honour was entitled to infer from the position adopted by Mr Kumar, that the applicant had only sought legal assistance at the last minute. His Honour did not, in my opinion, err in deciding to refuse or to dismiss the application for an order nisi. The applicant was represented and it cannot be said, on any view, that his Honour was under some duty to investigate whether the Tribunal's decision was attended, even arguably, by jurisdictional error. Faced with the apparent concession by the solicitor then appearing for the applicant that there was no jurisdictional error, it was open to his Honour to refuse the order nisi. 21 As to what is now said to be jurisdictional error, I make the following observations. Reliance is placed on the apparent contradiction between one passage in the Tribunal's reasons where it said that there was no evidence that ordinary members of the PML(N) were targeted for harm by reason of their membership of PML and an earlier reference to harassment of members in 2000 and 2001. However, the Tribunal's comments must be seen in context. The discussion of harassment in 2000 and 2001 appeared to be in the context of the membership proposing to or participating in public rallies or processions. At least, this is one available inference. Another available inference is that the reference to "no evidence [of targeting for harm]" related to members who did no more than maintain their membership. For my part, I do not see how this aspect of the Tribunal's analysis arguably constitutes jurisdictional error. 22 The other complaint was that it was not open to the Tribunal to form the view that the country information suggested the PML(N) was of little current interest to the government due to its diminished support and poor election results. This, in my opinion, is not within the field of potential jurisdictional error. It concerned a matter of impression and evaluation by the Tribunal by reference to material which could have reasonably been viewed by the Tribunal as supporting that impression and evaluation. Lastly, Wednesbury unreasonableness is relevant to the exercise of a discretionary power. In making this finding, the Tribunal was not exercising such a power. 23 In my opinion the applicant has not established any basis for impeaching the decisions of Wilcox J to refuse to adjourn the application and to refuse the order nisi. Moreover, I am not satisfied that there is any arguable basis for concluding that the Tribunal fell into jurisdictional error. The appropriate order is to refuse to extend time in which to seek leave to appeal. The applicant should pay the respondent's costs of the application. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore. Associate: Dated: 3 June 2005 Solicitor for the Applicant: Silva Solicitors Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 17 February 2005 Date of Judgment: 3 June 2005