SQMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 979

FEDERAL COURT OF AUSTRALIA

SQMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 979

NOTICE OF APPEAL – Application for an extension of time – Notice of Appeal signed within time but not sent to Registry by migration agent until time had expired.

Migration Act 1958 (Cth)

SQMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 241 cited SQMB AND SQNB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SAD 823 of 2003 LANDER J 30 JULY 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 823 OF 2003

BETWEEN: SQMB and SQNB

APPLICANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LANDER J

DATE OF ORDER: 30 JULY 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The time within which the applicants have to appeal from the orders made by Mansfield J on 17 October 2003 is extended to 19 November 2003. 2. Reserve the question of costs. 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 SAD 823 OF 2003

BETWEEN: SQMB and SQNB

APPLICANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LANDER J

DATE: 30 JULY 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application for an extension of time within which to appeal from a decision of a judge of this Court given on 17 October 2003. 2 The applicants are husband and wife and are citizens of India. 3 The applicants entered Australia on 2 December 2001. On 17 December 2001 they lodged an application for protection (Class XA) visas with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) (the Act). On 13 June 2002 a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the Minister) refused to grant the visas. On 11 July 2002 the applicants applied for a review of that decision. 4 On 1 May 2003 the Refugee Review Tribunal (RRT) affirmed the decision of the delegate of the Minister not to grant protection visas. 5 On 18 June 2002 the applicants commenced proceedings in this Court seeking a review of that decision. 6 On 8 September 2003 Mansfield J made the following orders: '1 The applicant [sic], by 3 October 2003: (a) If an extension of time within which to commence the proceedings is required, file and serve a notice of motion seeking an extension of time together with an affidavit by the applicant personally explaining the reasons for the delay in commencing the proceedings and deposing the reasons why an extension of time should be given. The notice of motion shall be made returnable for hearing at the next directions hearing. (b) file and serve an amended application specifying precisely the error or errors upon which the decision under review is challenged. (c) file and serve any further affidavit material to lay a foundation for the allegations made in the amended application. (d) file and serve outline of submissions. (e) file and serve a memorandum stating: ● the State or Territory in which the applicant is residing; ● whether the applicant wishes to be present at the hearing of the application; ● whether the matter is one that could be transferred to the Federal Magistrates Court; ● whether the applicant objects to transfer to the Federal Magistrates Court and, if so, the grounds for objection. 2 In the event that an extension of time is sought, the respondent is at liberty, within 2 weeks of receiving the notice of motion, to file and serve an affidavit in opposition to the extension of time. 3 The respondent within 3 weeks of receiving the applicant's amended application and supporting material pursuant to Order 1 above: (a) file and serve any affidavits in reply. (b) file and serve submissions in reply. 4 The directions hearing is fixed for Friday, 17 October 2003 at 9.00am. 5 In the event that Order 1 is not fully complied with, the applicant will be called upon at the adjourned directions hearing to show cause why the matter should not stand dismissed. 6 Liberty to apply.' 7 The matter came on again before Mansfield J on 17 October 2003. The applicants' counsel said to his Honour: 'The applicant has not complied with the court orders and does not wish the matter to proceed to a hearing.' 8 His Honour gave the following reasons: 'This is an application commenced on 18 June 2003, it seems, to quash a decision of the Refugee Review Tribunal given on 1 May 2003. On 8 September 2003 the court gave directions to the intent that the matter would be able to be listed for hearing today and that directions could be further given as necessary to secure the hearing. The directions given on 8 September 2003 have not been complied with. Counsel for the applicants has indicated that the applicants have given instructions that they do not wish to proceed with the application. In those circumstances I dismiss it. I order that the applicants pay to the respondent the costs of the application, which I fix at $1500, including disbursements.' 9 On the same day the Court made the following orders: '1 The application be dismissed. 2 The applicant pay the respondent's costs fixed at the sum of $1,500.00.' 10 On 19 November 2003 the applicants filed an application for extension of time to file and serve Notice of Appeal, a Notice of Appeal and an affidavit in support of the application for an extension of time. 11 The Notice of Appeal contains two grounds: '1. My solicitor failed to inform me the Court orders to comply. 2. The Court did not give me opportunity to present my case.' 12 On 16 December 2003 the respondent filed a submission in opposition to the applicants' application for an extension of time within which to appeal claiming that the orders made by Mansfield J were interlocutory and that, in those circumstances, the applicants required both leave to appeal and an extension of time within which to apply for leave. That objection to competency was specifically abandoned on the hearing of the application for the extension of time. The respondent has treated Mansfield J's orders as final orders. I offer no opinion as to the correctness of that concession. 13 On 17 December 2003 the respondent filed a subpoena (the first subpoena) directed to the applicants' former solicitor seeking production of documents. 14 The matter was listed for hearing on 22 December 2003 but had to be adjourned because contact could not be made with the applicants. 15 On 13 January 2004 the respondent filed another subpoena directed to Anil Agnihotri of Australia New Zealand Migration Services Pty Ltd, the applicants' migration agent, again seeking the production of documents relating to the applicants. That subpoena has never been called. 16 The return of the first subpoena was listed for 17 February 2004. The applicants attended the hearing by telephone. 17 The first subpoena was called and Mr Clisby produced his file in response to that subpoena. 18 The respondent made oral application to inspect Mr Clisby's file. I heard argument from the respondent's counsel and reserved my decision. 19 On 16 March 2004 I published my reasons for making the following order: 'Counsel for the respondent have leave to inspect that part of the file produced to the Court by the applicants' former solicitor on 17 February 2004 pursuant to subpoena, which was created on or after 8 September 2003.' 20 On 7 April 2004 I directed the respondent to file any affidavit upon which the respondent intended to rely within seven days and, in response, a further affidavit of the respondent's solicitor was filed on 13 April 2004. 21 Ms White's affidavit exhibited communications between the applicants' former solicitor, the applicants' migration agent, and the applicants. She has exhibited a copy of a letter dated 26 September 2003 from the applicants' solicitor to the applicants' migration agent advising that, in the solicitor's opinion, the case is not a strong one. She has also exhibited a copy of a letter of the same date from the applicants' solicitor to the male applicant. 22 That letter claims that Court orders had been made which must be complied with and, if not complied with, 'it is likely the matter will be dismissed in the Federal Court, on or about 17 October 2003'. 23 The letter concludes: 'If you have any enquiries, please contact your Registered Migration Agent, who also has a copy of Court Orders and they will refer your query to our office.' 24 Ms White has exhibited a copy of a letter from the applicants' solicitor to both applicants dated 4 November 2003 which records the orders made by Justice Mansfield on 17 October 2003 dismissing the applicants' application. The letter advises that the applicants should send their cheque for $1,500 payable to 'DIMIA – Collector of Public Monies'. The letter encloses a fee note in the sum of $770 including GST, a copy of which is also exhibited to Ms White's affidavit. 25 Lastly, Ms White has exhibited a copy of a letter from the applicants' solicitor to the applicants' migration agent, also dated 4 November 2003, recording the orders made, the need to pay the costs and that the original account has been sent to the applicants directly. 26 Importantly, Ms White has not exhibited any correspondence from the applicants or their migration agent to the applicants' solicitor which records the applicants' instructions not to continue with the matter. 27 The absence of any such instruction on the file, in my opinion, is very important. 28 In my reasons, given on 16 March 2004, SQMB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 241, I said, at [49]: ' I asked the respondent's counsel to undertake to the Court, that if leave was given to inspect the former solicitor's file and, if on a reading, that file disclosed communications or the absence of communications or any other information which supported the applicants' application, to bring those matters to the attention of the Court. Counsel readily gave that undertaking.' 29 Ms White's affidavit records the absence of any instructions which, in my opinion, having regard to the applicants' evidence contained in an affidavit to which I will refer shortly, is very important. 30 On 16 April 2004 I ordered the applicants to file any further affidavits upon which they intend to rely. 31 On 23 April 2004 the applicants filed a number of documents. The first was a certificate of the Indian Vice Consul in Melbourne verifying that the male applicant was an Indian citizen and identifying his passport number and his driver's licence. The second was a copy of a receipt issued by a Court at Jodhpur. The third was translation of a document which claimed that a warrant had been issued for the male applicant's arrest and that the person who created the document had been told that the male applicant had absconded. A further document was apparently a warrant of attachment, I think, directed to the applicant's father seeking to attach his properties for a surety of 10,000 Rupees. 32 None of the said documents were relevant to the application for an extension of time. 33 On 6 May 2004 I listed the matter for hearing on 23 June 2004. On 26 May 2004 the male applicant filed an affidavit on behalf of himself and, purportedly, on behalf of his wife. 34 On 23 June 2004 the matter was adjourned to allow the respondent to file any further affidavit material in response to that affidavit. 35 The matter came on again before me on 27 July 2004. The respondent had not filed any further affidavit material in the meantime. 36 The male applicant claimed in his affidavit that in or about December 2001 he and his wife instructed Mr Anil Agnihotri, of the firm Australia and New Zealand Migration Services (the agent), to make an application to the Department of Immigration and Multicultural and Indigenous Affairs for protection visas for them both. The male applicant claimed that they were told to pay the agent $800, which they did. 37 During 2002 the agent told the applicants that their visas had been refused and that he would need to proceed with another case on their behalf. In or about June 2003 the agent telephoned the male applicant. The agent told the male applicant that he had posted documents to the applicants and that they should sign the documents and return them to Sydney, and also to bring $2,000. 38 The male applicant said in his affidavit that he had paid the agent $2,000 and was then told by the agent that the previous case had finished and that the case now had to go to the Federal Court. The male applicant was asked to sign some papers, although the contents of the papers were not explained to him. 39 The male applicant said he did not hear from the agent again until October 2003 when he was told that his Court case was 'going to finish on 17 October 2003 and my wife and I must come to Sydney to sign documents for another case'. 40 He said: 'When I went to Sydney, the agent told me to go to the Supreme court to get certain papers. As I didn't know where the supreme court was and what papers he wanted and could not speak english, he sent someone from his office to accompany me to the court. When we came back to the agent's office with the papers he asked us to sign the papers. He did not tell me what these papers were for and asked another person to fill in the blanks. I am now told by the lawyer that this was the Notice of Appeal and attach same hereto marked "A". After I signed the documents, I paid the agent $600.00. The agent kept these papers and said he would send it to the court. I am now advised by the lawyer that the Notice of Appeal was not lodged at the court within the time stipulated by the rules of the court.' 41 The document exhibited to the male applicant's affidavit is, indeed, a copy of the Notice of Appeal dated 5 November 2003 which has been filed in the Court. Whilst it is dated 5 November 2003, as is the Notice of Appeal which has been filed in this Court, the Notice itself was not filed until 19 November 2003. 42 On 10 November 2003 the male applicant said that he and his wife received a letter from the Federal Court of Australia, South Australian Registry, enclosing an application for an extension of time to file and serve a Notice of Appeal. 43 The letter read: 'Thank you for your Notice of Appeal faxed to the SA District Registry today 10 November 2003. An applicant has 21 days from the date of judgment in which to file and serve a Notice of Appeal. Your Federal Court application was dismissed on 17 October 2003 and therefore the last day for filing was 7 November 2003. You will need to submit an application to the Court to request an extension of time in which to file and serve your Notice of Appeal. This must be accompanied by an affidavit stating the reasons why you were unable to file the Notice of Appeal within the 21 days. We have also received a copy of the application for fee waiver from [SQMB], however [SQNB] is also required to complete such an application. Please find following the documents you will require. They may be faxed back to the Registry on 08 8205 4439. If you have any queries please contact the Registry on 08 8205 4436.' 44 That letter establishes that an attempt was made to file the applicants' Notice of Appeal on 10 November 2003. I am not sure why the Notice was not accepted until 19 November, perhaps because the relevant fee did not accompany the Notice. The Registry would not have been entitled to reject the Notice because it was not accompanied by an application for an extension of time. 45 The male applicant took the letter and the application to a Justice of the Peace and asked for an explanation relating to the documents. He was told to see his migration agent immediately. The male applicant went to Sydney to see the agent, who completed the documents which he and his wife signed. The male applicant faxed the documents to the South Australian Registry. 46 Shortly after 16 December 2003, the male applicant received a letter from the respondent's solicitors enclosing a copy of the respondent's outline of argument. He said that he telephoned his migration agent and was told not to worry about them. 47 Soon after 23 December 2003, the applicants received a letter from the Federal Court of Australia advising that the matter had been listed before me on 22 December 2003 but that contact could not be made by the applicants. The letter informed the applicants that they would need to be present by telephone on 17 February 2004. 48 The male applicant advised the Court of his telephone number and attended the Court by telephone on 17 February 2004. 49 The male applicant deposed to the hearings before me and then said: 'During or about April 2004 I received a letter from Sparke Helmore enclosing copies of letters from MARK CLISBY, such letters are attached hereto marked "F1" and "F2". This was the first time I saw those letters as these letters were addressed to me at a farm address in Nericon where I previously resided and worked. I did not receive these letters as I moved out of Nericon on 19 September 2003 to Griffith, New South Wales. My wife and I were the only people living at this farm house in Nericon and after we moved out there was no one else living at and occupying the house at this address. As I've stated in paragraph 9 above, the agent did send me a letter in October 2003 but when I asked him to explain same he did not explain to us that the RRT affirmed DIMIA's decision not to grant us visas and that an application was made to the Federal court to review the RRT's decision and also that my wife and I had to comply with certain court orders granted by the Federal court. As stated in paragraph 2 above, the first time I came to know of the judgement granted by the Federal Court on 17 October 2004 [sic] against my wife and I was on 18 May 2004 when the lawyer explained this whole matter to me. Also, I was unaware that Mr Clisby was my lawyer until the court told me so in March 2004 and I emphasize that neither my wife nor I instructed him in any matters.' 50 The letters exhibited to the applicants' affidavit are the letters written by Mr Clisby to the male applicant dated 26 September 2003 and to both applicants on 4 November 2003. 51 I am satisfied, on the uncontradicted evidence before me, that the applicants were never aware that they had ever brought proceedings in this Court. I am also satisfied that the applicants were not aware at any time of the orders made by Mansfield J on 8 September 2003. I am also satisfied that there is nothing contained in the applicants' solicitor's file which records the applicants' instructions to the solicitor to advise the Court that the applicants did not wish the matter to proceed to a hearing. The respondent has not sought to establish that the solicitor had ever received such instructions. 52 I am further satisfied that the male applicant signed the Notice of Appeal on 5 November 2003, well within the time prescribed for the giving of notice to appeal but that the failure to file a Notice of Appeal was the fault of his agent. Again, the respondent has not sought to establish otherwise. 53 In all those circumstances, it seems to me that the interests of justice dictate that the applicants should be granted an extension of time within which to file a Notice of Appeal and, accordingly, I extend the time within which the applicants have to file a Notice of Appeal until 19 November 2003. 54 That will allow their appeal, from the orders made by Mansfield J on 17 October 2003, to go forward. 55 The orders of the Court will be: 1. The time within which the applicants have to appeal from the orders made by Mansfield J on 17 October 2003 is extended to 19 November 2003. 2. Reserve the question of costs. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander J.

Associate: Dated: 30 July 2004

Counsel for the Applicants: The Applicants appeared in person

Counsel for the Respondent: M Roder

Solicitor for the Respondent: Sparke Helmore

Date of Hearing: 27 July 2004

Date of Judgment: 30 July 2004