FEDERAL COURT OF AUSTRALIA

SZGDS v Minister for Immigration and Multicultural Affairs [2006] FCA 1109

MIGRATION – leave to appeal – whether leave to appeal should be granted – delay – prejudice – merits of prospective appeal

Held: Leave to appeal granted.

Federal Court Rules O 52 r 15

Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894 referred to

WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 referred to

SZGDS AND SZGDT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1117 OF 2006

COWDROY J

22 AUGUST 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  An extension of time be granted in which to file an appeal from the judgment of Nicholls FM delivered on 15 May 2006.

2.                  Leave be granted to rely upon the amended notice of appeal.

3.                  Costs of this application be costs in the appeal.

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

REASONS FOR JUDGMENT

1                                             The applicants apply for an extension of time in which to file and serve a notice of appeal from the judgment of Nicholls FM delivered on 15 May 2006. Such application is necessary because the notice of appeal was not filed and served within the time prescribed by O 52 r 15(1) of the Federal Court Rules. The present application was made on 9 June 2006 and the decision appealed from was delivered on 15 May 2006. Accordingly, it should have been filed on 5 June 2006 and is therefore four days out of time.

2                                             In addition to the affidavit filed with the application, the applicants today sought leave to file in Court three additional affidavits, as well as an amended draft notice of appeal. The solicitor for the first respondent indicated that she was in a position to proceed today even if the affidavits were filed, and accordingly I granted leave to file those documents.

3                                             According to the affidavits filed by the applicants, the draft notice of appeal was not filed in time because the first applicant was unwell for approximately a week immediately after he received notice of the decision.

4                                             The following background is drawn from the decisions of the Tribunal and Federal Magistrates Court, and from the submissions of the first respondent.

BACKGROUND

5                                             The applicants are husband and wife. They arrived in Australia from Egypt on 25 June 1997. On 2 October 1998 the applicants lodged applications for protection visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (‘the Act’). In his application for a visa, the husband claimed that he had been harassed and subjected to violence by members of an extremist Islamic group. On 29 October 1998 a delegate of the first respondent refused a protection visa to the applicants and on 23 November 1998 the applicants applied for a review of that decision.

6                                             The Tribunal’s decision to refuse a protection visa was based primarily on two reasons. Firstly, it said that there were numerous discrepancies in the evidence of the applicants and it did not accept that the applicants’ claims were credible. Secondly, it noted that evidence before the Tribunal suggested that the authorities would provide effective protection to the applicants against any serious harm they might face.

7                                             On 16 February 2001 the applicants joined in proceedings in the High Court known as the Lie class action(see Muin v Refugee Review Tribunal & Ors (S36 of 1999) (2002) 190 ALR 601). Pursuant to orders made by the High Court, the applicants filed a draft order nisi in the High Court, which was subsequently remitted to the Federal Court. On 23 April 2004 the applicants filed a notice of discontinuance in relation to the order nisi proceedings. Over a year later, on 27 April 2005, the applicants filed an application in the Federal Magistrates Court of Australia for judicial review of the decision of the Tribunal.

8                                             On 15 May 2006 Nicholls FM dismissed the applicants’ application with costs. In his decision, Nicholls FM accepted the submissions of the applicants that the Tribunal had breached s 424A of the Migration Act in respect of two pieces of information, being the name of the organisation which had been harassing him, and the absence of a reference to a suitcase containing gold and arms in his initial application. In respect of each of these findings, the Tribunal relied in part upon the discrepancies between the husband’s original statement to the Department and his statements at the Tribunal hearing, and made adverse findings on the husband’s credibility. Nicholls FM accepted that, in respect of each of these matters, the Tribunal was obliged under s 424A(1) to provide written notification to the husband that it intended to rely upon the statements to the Department, and give the husband an opportunity to comment. Accordingly, Nicholls FM accepted that the Tribunal had fallen into jurisdictional error in this respect.

9                                             However, Nicholls FM went on to consider the remainder of the Tribunal’s decision. His Honour concluded that there was a separate and independent line of reasoning adopted by the Tribunal on which its decision was also based, namely, that the evidence suggested that the husband would be able to access effective State protection in Egypt. Accordingly, Nicholls FM considered that the Tribunal’s decision could be sustained on an unimpeachable basis which was separate and independent to the part of the decision which contained the error.

10                                          Nicholls FM also considered the issue of unwarrantable delay. The respondent submitted to the Federal Magistrates Court that it should decline to grant relief to the applicants in any event, because the period of a year between the termination of the order nisi proceedings and the institution of the Federal Magistrates Court proceedings amounted to an unwarrantable delay. The applicants’ submitted that the delay was due to the negligence of their former solicitor. Nicholls FM did not consider that the applicants had provided sufficient evidence to explain the delay, and in particular noted that no evidence had been brought to corroborate the allegations made against the former solicitor. Accordingly, his Honour considered that even if the decision had been liable to be overturned because of jurisdictional error, he would have declined to grant relief for reason of unwarrantable delay.

AMENDED DRAFT NOTICE OF APPEAL

11                                          The draft notice of appeal, as amended, raises several grounds of appeal. In summary, those grounds are:

1.                  that Nicholls FM denied the applicants procedural fairness, because he failed to adjourn the hearing to enable the applicants to provide further evidence relating to unwarrantable delay;

2.                  that Nicholls FM erred by taking into consideration the first respondent’s further submissions relating to unwarrantable delay, which went beyond the subject for which leave to file further submissions was granted;

3.                  that Nicholls FM erred by not taking into consideration the evidence that all the applicants’ migration matters were taken care of by his former solicitors;

4.                  that Nicholls FM erred by failing to test submissions made from the Bar table by the applicants, and accordingly erred in the exercise of his discretion in respect of unwarrantable delay;

5.                  that, since his Honour found that the judgment of the Tribunal revealed jurisdictional error, Nicholls FM should have overturned the decision in accordance with SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162;

6.                  that Nicholls FM erred in the exercise of his discretion to refuse relief, because his Honour had found that the decision of the Tribunal contained jurisdictional error.

Findings

12                                          Order 52 r 15(1) of the Federal Court Rules provides that a notice of appeal to this Court must be filed and served within 21 days of the date on which the judgment appealed from was pronounced. However, O 52 r 15(2) provides:

‘(2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.’

13                                          In Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894 Finkelstein J identified three considerations for the Court in an application for an extension of time in which to file an appeal: firstly, the extent of the delay involved; secondly, any prejudice to the respondent occasioned by the delay; and thirdly, whether the applicant would suffer a serious injustice if the right to appeal were denied (see at [9] of his Honour’s judgment).

14                                          The first respondent submitted that the expenses associated with the appeal constitute prejudice which will accrue to it if the extension of time is granted. However, the legal costs of the appeal are not a matter which has arisen specifically because of the appeal being filed out of time; rather, these are costs which the Commonwealth would have incurred equally if the application had been filed within time. In my opinion, the prejudice to be considered in an application for an extension of time is only that prejudice which results by reason of the failure to file the appeal in time. Accordingly I do not consider that the costs of the appeal can amount to prejudice for the purposes of this application. In view of the shortness of the delay in this case, I do not consider that there is any relevant prejudice to the first respondent.

15                                          The first respondent also submitted that the applicants have provided insufficient reasons for the delay. I accept that the evidence provided by the husband relating to his sickness is relatively scant. Nonetheless, the husband has provided evidence in his affidavit that he was sick for a week during the appeal period, and has provided a certificate, if somewhat vague, from a medical practitioner confirming the illness. For the purposes of this application, I am willing to accept that the husband was sick during the appeal period, which prevented him from giving instructions to his solicitor to file an appeal. In view of the fact that the appeal was filed only three days out of time, I consider this is sufficient explanation for the delay. In my opinion, it constitutes a special reason for granting leave to appeal.

16                                          The first respondent observes that there is no explanation provided why the wife did not give instructions to the solicitor to file an appeal. The wife also has provided an affidavit, which says that it was her husband who usually communicated with the solicitor, and further that she was required to take care of their three young children and was unable to contact the solicitor. I accept that it was not the usual practice for the wife to communicate with the solicitor and that she had care of three young children as well as a sick husband. In these circumstances, I do not consider it unreasonable for her to have failed to give instructions to the solicitor to lodge an appeal, especially as she may not have been able to discuss the matter properly with her husband because of his illness. In these circumstances, I am satisfied that the explanation for the delay, being only three days, can be explained sufficiently for the purposes of this application.

17                                          Accordingly, I will turn to consider the third factor, namely the merits of the appeal. In WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399, the Full Court of the Federal Court said at [9]:

‘An extension of time within which to file an appeal will not be granted without a consideration of the putative appellant’s prospects of successfully prosecuting his appeal …’

18                                          The first respondent submitted that the draft amended notice of appeal does not have any merit. Unfortunately, the submissions of the solicitor for the applicants in relation to this matter were largely unhelpful.

19                                          Since Nicholls FM found that the application should be dismissed on two separate grounds, the applicants must succeed on both in order to be successful. Nonetheless, having considered the draft Notice of Appeal, it is evident that the applicants make challenges to both of the grounds which formed the basis for Nicholls FM’s judgment. Further, the applicants raise grounds of procedural fairness relating to the proceedings in the Federal Magistrates Court. Having considered the grounds raised, I do not consider that the case can be described as having no prospect of success. I accept that the grounds raised, at least on the basis of the evidence currently available to the Court, do not suggest a probable error in his Honour’s reasons. However bearing in mind that the Court in an application for extension of time should not delve too deeply into the merits, I do not consider that the appeal can be described as ‘foredoomed to fail’.

20                                          Overall, I do not consider that the appeal is so entirely devoid of merit that it should be prevented from being heard, in circumstances where there is no relevant prejudice to the first respondent and the delay involved is very short. In making this finding, I note the observations of the Full Court in WAAD at [7] that:

‘… where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted.’

21                                          Accordingly, I will grant an extension of time in which to file an appeal to the applicants and grant leave to rely upon the amended notice of appeal.

Associate:

Dated: 22 August 2006