FEDERAL COURT OF AUSTRALIA

SZEZJ v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 946

MIGRATION – application for enlargement of time to file and serve notice of appeal – no issue of principle – application dismissed

SZEZJ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 961 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 a notice of appeal is dismissed.

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

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

REASONS FOR JUDGMENT

1                     This is an application for an enlargement of time within which to file and serve a notice of appeal from the reasons for judgment of a Federal Magistrate delivered on 20 May 2005 (SZEZJ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FMCA 745), which dismissed the applicant’s application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) handed down on 30 June 2004.  The Tribunal affirmed the Minister’s delegate’s decision to deny the applicant a protection (Class XA) visa on 20 May 2003.  The applicant filed his application for an enlargement of time and two affidavits in support on 15 June 2005, which was outside of the 21 day time period mandated by O 52 r 15(1)(a)(i) of the Federal Court Rules and now seeks the Court’s leave pursuant to O 52 r 15(2) to file and serve his notice of appeal, a draft copy of which is annexed to his application. 

2                     The first affidavit sworn by the applicant states that he is a citizen of Bangladesh who formerly lived in Dhaka prior to coming to Australia on 29 March 2003.  The applicant attests that whilst in Dhaka, he ‘was deeply involved with the politics’ and ‘in my political activities by taking politics ACTIVITIES; meetings, demonstration’ (read literally).  The applicant appears to summarise the basis of his claim that he has a well-founded fear of persecution on his return to Bangladesh in [4] of that affidavit, which reads literally as follows:

‘After the general election BNP took power illegally.  They arrested our leaders, AND the leader of the AL.  Published a list of people who were previously holding super of Bangladesh for arrest/kill.  Arresting our member of the party by using Black law-Special Power Act.  My lifer was in danger.  The BNP worker listed me and tried to kill me several occasions.  By finding no other ways I left Bangladesh to save my life.’

It is not clear from that description what party or group the applicant claims he belonged to or was associated with however as is apparent from the thorough treatment of the Tribunal’s decision contained in the Federal Magistrate’s reasons for judgment, the applicant claims to have an association with a political party called the Awami League.

3                     In paragraph [6] of the same affidavit, the applicant submits that he is ‘not satisfied with the [Federal Magistrate] decision of my Judicial review application.  I argued my application but honourable court did not consider that’.  Paragraph [7] provides the following explanation for why his appeal to this Court was brought out of time: ‘my application is late because I do not understand properly the decision of [Federal Magistrate].  After receive the copy of judgement then I appeal.’  This same explanation is repeated in the second affidavit sworn by the applicant and makes up its entire contents. 

4                     The draft notice of appeal filed on 15 June 2005 contains the following purported grounds (read literally):

‘2.   The Single judge of the Federal Magistrates Court in his Honors Judgment delivered on the 20 May 2005 failed to find error of law, Jurisdictional error Procedural fairness and relief Under Section 39B of the Judiciary Act 1903.

3.      The grounds and relief is very much similar with a recent High Court Judgment – Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 (8 August 2002).  Catchwords: Immigration – Refugee – Protection visa – Decision by Minister to refuse application for visa – Review of decision by Refugee Review Tribunal – Obligation of Secretary of Department of Immigration and Multicultural Affairs to give relevant documents to Registrar for purpose of review – Nature and extent of obligation – Migration Act 1958(Cth), ss 148(3), 424(1).

4.      Recent High Court judgement: Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA (14 February 2003).

5.      Recent Federal Court of Australia judgment: SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74 (14 February 2003).’

This purported draft notice of appeal is almost identical in form to those reproduced in numerous earlier appeals that I heard in 2004:  SZAIL v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 266; SZAXN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 275; SZAQW v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 635; SZAKU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 892; SZALF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1065; and SZAUV v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1745; and in 2005:  SZEZE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 122 and SZDLQ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 696.

5                     As I have stated on many earlier occasions in relation to what may be described as a standard form of notice of appeal for instance sought to be adopted by the applicant in this matter, it is readily apparent that each paragraph of that purported notice of appeal does not specify any viable grounds of review, but merely re-states the decision appealed from, or refers to case law in general terms, without in any way purporting to relate or apply the same to the circumstances and matters set out in the reasons for judgment of the Federal Magistrate below, or the reasons for decision of the Tribunal, or otherwise to explain the relevance of the same to any alleged circumstances of the applicant.  None of that material satisfies the requirements of Order 52 rule 13(2)(b) of the Federal Court Rules, which requires a notice of appeal to state ‘briefly, but specifically the grounds relied upon in support of the appeal’.  I would further point out that the adoption by the applicant of a standard form notice of appeal which is drafted without reference to the decision being appealed from is destructive of his primary submission, namely that the delay in filing this notice of appeal was caused by his need to first obtain a copy of the Federal Magistrate’s decision.

6                     Notwithstanding the 21-day time limit imposed by the court rules for the filing of a notice of appeal, ‘the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal’ (O 52 r 15(2), my emphasis).  An application for an extension of time requires an accompanying affidavit showing the nature of the case, the questions involved and the reason why leave should be given: O52 r 15(6).  I infer from the material filed by the applicant that I have essayed above, that the applicant submits that the ‘special reasons’ for me so ordering are that he waited until he received the Federal Magistrate’s reasons for judgment until he filed an appeal and that the Federal Magistrate did not consider his arguments put in support of his application for review. 

The applicable principles

7                     In Gallo v Dawson (No 2) (1992) 109 ALR 319 the High Court (composed of Mason CJ, Brennan, Deane, Toohey and Gaudron JJ) unanimously upheld an order by McHugh J refusing an application for an extension of time in which to file a notice of appeal.  McHugh J’s judgment contained the following passage explaining the discretion that existed under O 60 r 6 of the former High Court Rules to enlarge the time required to do things under those rules (Gallo v Dawson (1990) 93 ALR 479 at 480):

‘The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties…This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.  In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for an extension of time…When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal…’ (my emphasis appears in non-italics). 

As I have already indicated, the applicant has provided nothing to indicate that his appeal has any merits or that his draft grounds of appeal bear any relation to the judgment being appealed from.

8                     The Full Federal Court in Jess v Scott (1986) 12 FCR 187 at 195 (Lockhart, Sheppard and Burchett JJ) held that the words used in O 52 r 15(2) ‘at any time’ render the test ‘an elastic one’ such that an extension of time may be granted in respect of delays ranging in length from a few days to years (although they did point out that it ‘would require something very persuasive indeed to justify a grant of leave after, for example, a year’).  The Court considered what is required for ‘special reasons’ to exist at page 195 of their reasons for judgment:

‘It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of 21 days. In that context, the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is 21 days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression “for special reasons” implies something narrower than this.’

9                     Thus the power contained in O 52 r 15(2) is a discretionary one.  Finn J relied upon the above dicta in Jess v Scott in his reasons for judgment in Kalaba v The Queen (unreported, Federal Court, 13 September 1996) as well as the decision of the Full Court in Jones v The Queen (unreported, Federal Court, 17 August 1984) in which the Court held that there are two matters which inform the exercise of the discretion to grant the extension of time under O 52 r 15(2):  first, whether the applicant has advanced a reason ‘sufficient to excuse, or at least explain his delay so as to justify allowing him to institute an appeal out of time’.  Secondly, has the appellant shown that the appeal that he or she seeks to bring has sufficient prospects of success so that they should now be allowed to proceed with it?

10                  In Ariaee v Minister for Immigration & Multicultural Affairs [2001] FCA 1627 the applicant was in detention and explained that the delay in filing the notice of appeal was caused by the length of time that it took the reasons for decision of the primary judge to be mailed to him.  Judgment had been delivered ex tempore.  Mansfield J considered the combination of the fact that the applicant was in detention, that he required the use of an interpreter and that he had no knowledge of law or practice such that he could not have been expected to have known that the time in which to initiate an appeal started running from the moment judgment was delivered as opposed to when the reasons were received, as providing ‘special reasons’ sufficient to remove the case from the usual course (referring to Jess v Scott).  His Honour also considered the legal issues raised by the contemplated appeal and found that there were sufficient prospects of that appeal succeeding. 

The Federal Magistrate’s decision

11                  The applicant supported his application for review before the Federal Magistrate on a large number of grounds which were helpfully summarised at [19] to [27] of his Honour’s reasons for judgment.  I set out that summary interposed with his Honour’s finding in respect of each ground:

(i)                  Grounds one and two:

‘19. The applicant's claim for relief relies on the following points, which I will summarise.  First, he says that the Refugee Review Tribunal did not follow the proper procedure as required by the Migration Act.  Second, he said that the decision of the Refugee Review Tribunal was affected by an error of law amounting to jurisdictional error and issues of procedural fairness.’

The applicant urged the Federal Magistrate to listen to the tapes of the Tribunal hearing since he had been too impecunious to purchase a transcript.  The applicant claimed that the Tribunal either did not read or only selectively read the documents that he had handed up, relying on the fact that selective quotation of that material occurred in the Tribunal’s reasons.  His Honour did not find that this disclosed procedural unfairness, observing that there is no obligation on a decision-maker to recite each and every piece of material that it is referred to.  His Honour was unable to discern any other procedural irregularity in the Tribunal’s conduct of the hearing from the evidence before him. 

(ii)                Ground three:

‘20. … the applicant says that the letter of invitation to hearing forwarded to him by the Tribunal on 9 September 2003 was misleading.  It was misleading to the extent that he relied on that letter to his detriment.’ 

It appeared to his Honour that the part of the letter of invitation which the applicant purportedly found misleading was the statement ‘The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone’.  The Federal Magistrate drew the applicant’s attention to s 425 of the Migration Act 1958 (Cth) which requires an invitation to be extended to a hearing in some circumstances only and concluded that he was unable to find that the letter was anything other than the standard form letter sent to review applicants or that it was misleading in any way. 

(iii)               Ground four:

‘21. … the applicant said that his application had not been taken into consideration properly, and that this amounted to a denial of procedural fairness.’ 

His Honour observed that the applicant provided no evidence in support of this vague claim.  Given that the Tribunal’s central finding was that the applicant lacked credibility as a witness, I would add that this claim amounts in effect to an attempt to challenge the merits of the Tribunal’s findings of fact in that regard, which are exclusively the preserve of the Tribunal:  see Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Durairajasingham (2000) 168 ALR 407 where at [67] McHugh J stated that ‘a finding on credibility … is the function of the primary decision-maker par excellence’.

(iv)              Ground five:

‘22. … the applicant says that the Tribunal did not rely on the part B documents which had been considered by the delegate of the Minister in making the decision under review and did not have access to them.’ 

His Honour found that this claim must fail in the absence of any evidence suggesting that the Tribunal did not have those documents or that it had not read them.  It was not sufficient that the Tribunal did not refer to them in any great detail in its reasons for decision.

(v)                Ground six:

 ‘23. …the applicant says that the Tribunal ignored relevant evidence and made a finding in the face of contradictory independent evidence, and that this constitutes a jurisdictional error, being a breach of procedural fairness.’ 

There was no evidence to suggest that the Tribunal has ignored relevant evidence; the applicant was not able to point to anything in particular that had been ignored by the Tribunal and the Federal Magistrate rejected this claim accordingly.  His Honour did uphold the applicant’s claim that the Tribunal had made a finding of fact in that his Honour considered that the Tribunal had misunderstood the applicant’s evidence in respect of one point.  The applicant was an actor of note in Bangladesh and he adduced video-footage of his work on television shows which were screened by a government owned television channel some eighteen-months after the applicant alleged that he was to have stood trial on false charges brought against him for political reasons.  His Honour found that the Tribunal made an error of fact in concluding that the applicant had filmed the television programme at around the same time that it was put to air.  The Federal Magistrate considered that this was because the Tribunal had misunderstood the applicant’s evidence that the programme was pre-recorded.  His Honour referred to Abebe v Commonwealth (1999) 197 CLR 510 for the principle that an error made in a finding of fact does not of itself constitute jurisdictional error.  I would observe in addition that this finding was one of a number identified by the Tribunal as providing support for its primary finding that the ‘applicant was not telling the truth’, that his claims were ‘fabricated’ and his evidence was ‘unreliable’. 

(vi)              Further non-particularised grounds:

 ‘24. The applicant has given a number of examples of evidence which he says supports his claims.  He has also referred the Court to a number of decisions of the High Court of Australia.  He has referred the Court to the decision of the Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2. 

25. He has referred to Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30 and to the decisions in Walton v Phillip Ruddock (2001) FCA 1839, and Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602, and Craig v South Australia (1995) 184 CLR 163. 

26. He has also relied on the decision of Abebe v Commonwealth (1999) 197 CLR 510, and the well known case of R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598. 

27. I am referred to the work of Mark Aronson and Bruce Dyer on administrative law, and to the decisions in R v Commonwealth Rent Controller; ex parte Theiss Repair Pty Limited (1948) 77 CLR 123, and R v Murray; ex parte Proctor (1949) 77 CLR 387.’ 

The applicant did not make any submissions to the Federal Magistrate in relation to these authorities and secondary materials. 

12                  At today’s hearing, the Minister submitted that neither of the applicant’s affidavits or his draft notice of appeal pleaded an error in the Federal Magistrate’s reasons for judgment.  When I asked the applicant to identify any such error, he repeated his explanation about why he was late to file his notice of appeal but did not otherwise mention the Federal Magistrate’s decision.  The present circumstances are distinguishable from those before Mansfield J in Ariaee in that the applicant is not in detention, the applicant did not claim to be acting under an impression that the time for filing a notice of appeal only began to run once he received a copy of the reasons, and most importantly, there are no prospects of his purported appeal succeeding.  The reasons for judgment of the Federal Magistrate are comprehensive and well-considered.  In light of the Tribunal’s finding that the applicant lacked credibility and that his claims were fabricated, there is little to no scope for review of that decision.

Conclusion

13                  I dismiss the application for an enlargement of time within which to file a notice of appeal and I order the applicant to pay the respondent’s costs assessed at $500.

Associate:

Dated:              8 July 2005