FEDERAL COURT OF AUSTRALIA

SZDQF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1728

SZDQF v Minister for Immigration and Multicultural and Indigenous Affairs

N 1736 of 2004

JACOBSON J

20 DECEMBER 2004

SYDNEY

THE COURT ORDERS THAT:

1.          The application for leave to appeal is refused.

2.          The applicant to pay the costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

Introduction

1.                       This is an application for leave to appeal and for an extension of time to seek leave to appeal against the orders and judgment of Federal Magistrate Baumann dated 8 September 2004.  On that date the learned Magistrate upheld the respondent's notice of objection to competency which was made pursuant to section 477(1A) of the Migration Act 1958 (“the Act”) on the ground that the application was not filed within 28 days of the notification of the decision of the Refugee Review Tribunal (“the RRT”) and dismissed the application for judicial review of the RRT’s decision.

2.                       The applicant filed the present application on 24 November 2004, approximately eight weeks after the time provided for under the Federal Court Rules.  The applicable rule is Order 52, Rule 5. 

3.                       The applicant must establish special reasons for an extension of time to seek leave to appeal against the decision.  In Jess v Scott (1986) 12 FCR 187 at 195, a Full Court stated that what is necessary to satisfy the test is to demonstrate circumstances which justify the departure from the general rule.  In the particular case the ground must be such as to take the case out of the ordinary. 

4.                       One of the most important factors in the exercise of the discretion is whether there is any prima facie strength to the proposed ground of appeal; see Howard v Australian Electoral Commission [2000] FCA 1767 per Branson J at [7].

5.                       I will set out briefly the background in this matter and the reasons for the RRT and the Federal Magistrate, before turning to the present application.

Background

6.                       The applicant is a citizen of Bangladesh.  He arrived in Australia on 2 September 1999 and applied for a protection visa on 1 October 1999 on the ground that he had a well founded fear of persecution by reason of his political opinions as a prominent member of the Freedom Party (“the FP”).  A delegate of the Minister refused to grant the applicant a protection visa.  In a decision of the RRT handed down on 6 June 2000, the RRT affirmed the decision of the delegate.  The RRT set out in some detail the applicant's claims and it is unnecessary to set out the claims in any detail.

7.                       The RRT found that the applicant's evidence lacked credibility.  It observed that independent evidence was to the contrary of much of the information given by the applicant at the hearing.  It said that when this was put to the applicant, he had a tendency to alter his evidence when challenged and that this added to the RRT’s view that the claims lacked credibility.

8.                       The RRT gave a number of examples of instances where it found that the applicant was making up “claims on the run” and was satisfied that the applicant was cognisant of what he was saying at the outset and had not misunderstood a question or unknowingly led the Tribunal to misunderstand his answers.  For these reasons the RRT was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.

9.                       Approximately four years later, on 24 May 2004, the applicant who was then in detention filed a notice of appeal against the decision of the RRT in the Federal Magistrate's Court.  In his decision of 8 September 2004, Federal Magistrate Baumann noted that the application was in general terms, that it included an allegation that the RRT made its decision in bad faith, that the Act was not properly observed, and that the application stated that "I will provide more details later". 

10.                   The learned Federal Magistrate observed that despite directions made by the court that the applicant file and serve an amended application supported by an affidavit, the applicant had failed to do so and that no written submissions were provided.  The learned Magistrate also observed that at the hearing the applicant sought an adjournment as the "person who helped him complete the application is no longer in Australia and has not returned". 

11.                   The Magistrate was satisfied that the applicant had every reasonable opportunity to make attempts to get assistance to expand his grounds for the application if he wished to do so and he did not consider it appropriate to grant the adjournment especially considering the length of time which had elapsed since the RRT decision.

12.                   The Magistrate considered the claims stated in the application and at [10] found that:-

“Whilst the applicant may not have sufficient expertise to identify jurisdictional error on the information available to the court, I have formed the view that the findings of fact and conclusions reached by the Tribunal on the applicant’s claims were abundantly open to the member on the evidence available to her.”

13.                   The Magistrate noted that the claims made by the applicant were not particularised and none of the alleged errors of law were particularised as required.

14.                   The Magistrate also emphasised that it was not open to the court to review the merits of the RRTs decision and that the decision turned on issues of credibility.  He made reference to the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 in which his Honour said that this was a function of the primary decision maker “par excellence”.  The learned Magistrate found that the applicant had not established any jurisdictional error in the decision of the RRT. 

15.                   He went on to find that the failure to file the application within the time limit meant that the objection to competency must be upheld.  Accordingly, the application was dismissed as incompetent.

16.                   The present application relies upon an affidavit which does not appear to have been sworn but which was dated 21 October 2004 and filed on 24 November 2004.  It states:-

“My appeal is involved with the reference of recent two high court decisions.  My case and the high court cases are identical. 

This issue in this my the decision has the involve with legal error.

I am unrepresented I am looking for legal aid barrister after the appeal filing I will submit why and what reason I requested leave to appeal.”

17.                   The applicant appeared before me today without legal representation.  He said that he had received no notice of today's hearing and said that because he is in detention in Villawood he has had no opportunity to obtain legal representation.  However, Mr Markus for the Minister opposed any adjournment.  He pointed out that despite the fact that the application for leave to appeal was filed approximately eight weeks after the expiration of the time limit specified in the rules, it still does not identify any ground which might have any prospect of success if leave to appeal is granted.

18.                   The applicant said that he was looking for a lawyer.  However, there is no solicitor on the record and the history of these proceedings persuades me that the applicant has had since June 2000, when the RRTs decision was handed down, more than sufficient time to secure legal representation to challenge the decision of the RRT and the decision of the Federal Magistrate.

19.                   Mr Markus very fairly conceded that it is not easy for the applicant to secure legal representation in Villawood.  But as he submitted, this is a case in which the history demonstrates that there is no real likelihood of the applicant obtaining legal representation.  Indeed, there is nothing on the evidence before me to suggest any such likelihood.

20.                   The evidence on the court file indicates that a notice dated 7 September 2004 was sent to the applicant at Villawood informing him of today's hearing.  The applicant did not say that he had not received the letter but he did say that he had no notice of the hearing.  Even if he did not have notice there are, as I think I have already made clear, two reasons why I would not grant an adjournment.  The first is that there is nothing to indicate any possible prospect of success.  The second is that the applicant has had more than sufficient time to obtain legal representation to take steps to challenge the decision of both the RRT and the Federal Magistrate if he wished to do so.

21.                   The affidavit which has been filed in support of the application does not explain the delay in filing the application for leave to appeal.  It does not, therefore, demonstrate special reasons within the principle to which I have referred.  However, what persuades me against the application is really the absence of any prospects of success.

22.                   As Mr Markus pointed out, there are really only two paragraphs in the affidavit which suggest in any way some possible grounds of appeal upon which the applicant proposes to rely.  Probably the most important is [3] in which the applicant refers to two High Court cases; the cases are not identified.  I am not aware of any High Court authority which bears upon the relevant question before me which is whether the Federal Magistrate's decision discloses any error.  In any event I cannot see that there is any possible High Court decision which bears upon the question of jurisdictional error on the part of the RRT because, as I have said, the RRT’s decision turned purely upon a credibility finding.

23.                   The other reference in the affidavit which I should mention is [4] in which the applicant contends that there were legal errors.  These are unparticularised.  This is consistent with the pattern of the case as disclosed before the Federal Magistrate and demonstrates yet again that despite the ample opportunity available to him, the applicant has been unable to point to any jurisdictional error or error of law in the decision of the RRT.

24.                   For these reasons I am satisfied that the applicant has not pointed to any error on the part of the learned Federal Magistrate.  The decision of the Federal Magistrate is not attended by any doubt and, therefore, there is no purpose in extending time to file an application for leave to appeal. 

25.                   Accordingly I dismiss the application for leave to appeal and the application for an extension of time.  I will order the applicant to pay the respondent's costs of the application. 

Associate:

Dated:              23 December 2004