FEDERAL COURT OF AUSTRALIA

SZCGQ v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 945

MIGRATION – application for leave to appeal from Federal Magistrate – no issue of principle – application dismissed

SZCGQ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 952 OF 2005

CONTI J

7 JULY 2005

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for an enlargement of time within which to file and serve an application for leave to appeal and the application for leave to appeal be dismissed.

2.                  The applicant must pay the respondent’s costs assessed at $500.

REASONS FOR JUDGMENT

Background

1                     The applicant seeks leave to appeal from a Federal Magistrate’s refusal on 18 May 2005 to set aside an order dated 5 April 2005 summarily dismissing the applicant’s application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 11 December 2003.  The Tribunal found that it did not have jurisdiction to review the decision of a delegate of the Minister refusing the applicant a protection (Class XA) visa because the applicant filed his application for review outside of the prescribed time period. 

2                     The applicant applied for review of the Tribunal’s decision in the Federal Magistrates Court on 22 December 2003.  Since the applicant did not appear at his scheduled hearing on 5 April 2005, the Federal Magistrate summarily dismissed the application pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules.  Rule 16.05 of the Rules gives a Federal Magistrate the discretion to set aside an order if it is made in the absence of a party.  On 11 May 2005, the applicant applied to have the Federal Magistrate’s summary dismissal set aside pursuant to that rule.  It is from the Federal Magistrate’s decision to refuse to exercise her discretion in the applicant’s favour that he now seeks leave to appeal.

3                     The Federal Magistrate’s refusal to set aside her earlier order summarily dismissing the application for review did not finally determine the legal rights of the parties and was therefore interlocutory:  Re Luck (2003) 203 ALR 1.  As such, the applicant was required to seek leave to appeal from that judgment:  Federal Court of Australia Act 1976 (Cth) s 24(1A).  The applicant filed an application for leave to appeal from the Federal Magistrate’s decision on 14 June 2005, which is outside the 21 day time limit prescribed by Federal Court Rules 1976 (Cth) O 52 r 5(2).  The applicant must therefore also apply for an enlargement of time within which to file his application for leave to appeal. 

4                     Annexed to his application is a draft notice of appeal which contains the following purported grounds of appeal (read literally):

‘I had moved to Melbourne on a temporary basis.  Due to personal and financial circumstances.  Because I met accident on 21 August 2004 in Sydney (Concord) after accident I am not able to concentrate my case.  I had problem with my financial as well.  Kindly reconsider my case.’

The accident referred to above would appear to relate to a witness statement that the applicant annexes to his affidavit filed in support of his application.  The affidavit itself reads simply as follows:

‘I got medically unfitted for while.  That’s why I am not able to filed for my case.

Kindly reconsider my case.’

The witness statement is contained on a typed one page document headed with the title ‘NSW Police – Statement of a Witness’ and the coat of arms of the NSW Police.  It relates to an incident which allegedly occurred early in the hours of the morning of the 21 August 2004 during which the applicant sustained minor head injuries after confronting a number of persons said to be in the process of committing a ‘ram raid’ of retail premises across the road from his residence. 

The Federal Magistrate’s decision

5                     In determining whether to set aside her earlier order summarily dismissing the applicant’s application for review of the Tribunal’s decision, the Federal Magistrate identified two relevant factors that influence the discretion.  The first was the existence of reasons for non-appearance and whether the appellant can show that by accident, and without fault on his part, that the order was made in circumstances that warrant the exercise of the discretion.  The second was whether or not the applicant has an arguable case or whether it would be futile to set aside the orders dismissing the application for review, referring in that regard to a decision of a single judge of this Court in Lee v Minister for Immigration & Multicultural Affairs [2001] FCA 1448 at [4]. 

6                     The reason given by the applicant for his non-attendance at his original hearing date of 5 April 2005 was the same as that given to me, namely that he was experiencing personal and financial difficulties at the relevant time which prompted him to move to Melbourne causing him to forget about his hearing.  Her Honour considered that whilst that explanation was understandable in a personal sense, it did not amount to an explanation that by accident or without fault on the applicant’s part he was unable or failed to attend the hearing.  The applicant has not been able to persuade me otherwise at today’s hearing.

7                     Her Honour proceeded to find that there was no arguable case established by the applicant on his application.  The Tribunal found that it did not have jurisdiction to conduct a review of the delegate’s decision to refuse the applicant a protection visa, since the application for review was lodged outside of the 28-day period stipulated by s 412(1)(b) of the Migration Act 1958 (Cth).  No suggestion was made by the applicant that there was an arguable case that the Tribunal failed to calculate the relevant periods correctly or erred in its understanding of the relevant law.  The Tribunal has no jurisdiction to enlarge the time within which an application for review can be made:  Fernando v Minister for Immigration & Multicultural & Indigenous Affairs (2000) 97 FCR 407 at [31] and [44].  Accordingly, her Honour found that it would be futile to reinstate the applicant’s application as it has not been demonstrated that he has any arguable case. 

Conclusion

8                     The guiding considerations which inform the decision to grant leave to appeal from an interlocutory judgment ‘in the general run of cases’ were outlined by the Full Federal Court in Décor Corp Pty Ltd v Dart Industries (1991) 33 FCR 397, which adopted the two principles formulated in Neimann v Electronic Industries Ltd [1978] VR 431.  Those are first, whether in all the circumstances the interlocutory decision is attended by ‘sufficient doubt’ to warrant reconsideration by a court on appeal.  Secondly, whether substantial injustice would result if leave were refused, supposing the decision to be wrong.  It is also helpful to have regard to the reasons for judgment of Hely J in NACA v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 659 at [12], in which his Honour said:

‘In my view, the decision to which the Federal Magistrate came was the correct decision in all the circumstances.  It was incumbent upon the appellant to show that if he wanted the Federal Magistrate to reopen the case that there was some purpose in doing so.  In other words he had to show an arguable case that the [Tribunal’s] decision should be quashed on the grounds of jurisdictional error.  The appellant did not do so.’

9                     It is overwhelmingly clear that any appeal from the Federal Magistrate’s discretionary decision has no prospects of success.  Her Honour’s reasons for judgment display detailed consideration of the relevant principles, the claims put forward by the applicant and the reasons for decision of the Tribunal.  I am unable to reach any other conclusion than that the application for leave to appeal must be dismissed and the applicant must pay the respondent’s costs assessed at $500.

Associate:

Dated:              8 July 2005