FEDERAL COURT OF AUSTRALIA

SZEUZ v Minister for Immigration and Multicultural Affairs [2006] FCA 1515

Migration Act 1958 (Cth)  

Jess v Scott (1986) 12 FCR 187

SZEUZ v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD1530 OF 2006

JESSUP J

1 NOVEMBER 2006

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the first respondent’s costs fixed in the amount of $1300.

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

REASONS FOR JUDGMENT

1                     On 14 August 2006, the applicant applied for an extension of time to file and serve a Notice of Appeal from a judgment of the Federal Magistrates Court given against him, and in favour of the respondent Minister, on 20 July 2006.  The applicant, who is originally from Pakistan, had sought a protection visa under the Migration Act 1958 (Cth) and that application had been refused, both by a delegate of the Minister and by the Refugee Review Tribunal. 

2                     The applicant's application for an extension of time is supported by an affidavit made by him on 14 August 2006.  That affidavit indicates that the applicant required the help of a friend to lodge his appeal, that the friend was originally busy and that by the time he met the friend, on 12 August 2006, he was out of time.  I accept this evidence, and I accept also that the applicant acted with expedition, as soon as he realised that he was out of time to appeal.  I note, however, that the applicant has not provided any explanation of why almost the whole of the time was allowed to pass before he sought help from his friend.  I am, however, not disposed to hold that circumstance against him and I will not take it into account in the resolution of the present question.

3                     The court's power to extend time for the filing of a Notice of Appeal, is given by O 52, r 15 of the Rules of Court, sub-r (6) of which requires an application for an extension to be supported by an affidavit showing the nature of the case, the questions involved and the reason why leave should be given.  The power is exercisable at any time and for special reasons.  In  Jess v Scott (1986) 12 FCR 187, 195, the Full Court said:

            What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons".  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 that the use of the expression "for special reasons" implies something narrower than this.

4                     The discretion to extend time is given for the purpose of enabling the court to do justice between the parties.  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: WAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 399.  On the other hand, even in a case in which special reasons exist, the court retains a discretion to grant or refuse the extension of time sought: Howard v The Australian Electoral Commission [2000] FCA 1767.

5                     I am disposed to think that special reasons have been shown in the present case.  I accept that the applicant acted bona fide at all times and did not sit by and permit time to pass without a conscientious attitude towards the obligations of an intending appellant.  He explained to me in court today that he did attend at the Registry of the court within time, and that the Registry provided him with pro forma documentation which would facilitate his lodging of an appeal.  It was with this documentation that he sought his friend's assistance, as the applicant himself is not literate in the English language.  Time expired on 10 August 2006 and his application for an extension of time was filed on 14 August 2006.  I am persuaded that, in the context of the short period of time involved and the explanation which the applicant has provided, I should regard this case as one involving special reasons within the meaning of O 52 r 15(2).

6                     I turn then to the exercise of my discretion as to whether to grant an extension of time.  I do, of course, take into account the matters to which I have already referred, that is to say the applicant's explanation for his delay and the very brief interval by which he was out of time.  However, there is a significant consideration which bears upon my discretion in this matter, to which I have not so far referred.  It is the apparent prospects of success of the appeal which the applicant seeks to file.  His application for an extension of time was accompanied by a draft Notice of Appeal, which set out the following ground:

            As RRT did not accept the grounds I have made regarding Sunni and Shiah.  I have given enough documents and proved them that how I waspersecuted in Pakistan.  I was converted from Sunni sect to Shiah on 7 December 2001: I was beaten by Sunni organisations and if go back my life is in danger.

7                     The applicant's application in the Federal Magistrates Court was based, as it had to be, upon an allegation of jurisdictional error on the part of the Tribunal.  It was not sufficient for the applicant to have attempted to persuade the Magistrate that the Tribunal was wrong, or that the Tribunal had not accepted the grounds upon which he based his case.  The way in which he conducted the proceeding before the Magistrate is apparent from par 6 of his Honour's reasons of 20 July 2006:

            The applicant seeks merits review as he made abundantly clear in his oral submissions this afternoon.  I am not in a position to grant the review he seeks.  It is beyond the jurisdiction of the Court. 

Notwithstanding the way in which the applicant apparently conducted his case before the Federal Magistrate, the Federal Magistrate was at pains to identify any basis upon which a jurisdictional challenge might possibly be made to the Tribunal's decision.  My reading of the Federal Magistrate's judgment in this regard has persuaded me that he sufficiently excluded the prospect that the decision of the Tribunal was infected by jurisdictional error. 

8                     I gave the applicant an opportunity today to explain to me the nature of the case which he would seek to conduct on an appeal in this court, and in particular to address me on the deficiencies in the way the Federal Magistrate disposed of the matter.  Nothing he said would cause me to depart from the Federal Magistrate's observation that he essentially seeks a merits review of the Tribunal's decision.  Such a procedure is no more available here than it was before the Federal Magistrate.  Indeed, this court's first function on an appeal would be to consider whether the Federal Magistrate had made an error in the way he disposed of the proceedings before him.  The applicant made it clear that he was not a lawyer and that he was in no position to deal with such subjects; and one might be sympathetic with the position in which he finds himself in that regard.  But the fact is that he has the carriage of proceedings today, and part of his case must necessarily be an explanation to me as to why an appeal from the Federal Magistrate would have at least an apparently arguable prospect of succeeding.  He has not done that. Nothing which Mr White, who represented the respondent, has been able to identify, and nothing which I have seen myself in the Federal Magistrate's reasons, discloses any error of the kind that might be addressed on appeal. 

9                     The applicant explained to me today that he was ordered to pay $5000 costs to the Department as a result of losing the proceedings before the Federal Magistrate, that he has not done so, that he is now out of work and that he needs permission to work so that he can earn money and pay back this debt.  In the view I take of the proposed grounds of appeal, and in the light of what the applicant has said to me in court, I think that clearly the most likely outcome, if I were to extend time for the institution of an appeal, would be that such an appeal would be unsuccessful and that the applicant would end up having to pay even more money to the Department.  I cannot believe that that would be in anyone's interests.  It appears to me that the applicant has had a very fair opportunity to advance his jurisdictional challenge to the decision of the Tribunal, and that his case in that regard has been fairly and correctly dealt with by the Federal Magistrate.  

10                  I take the view that there would be no utility in extending time, and therefore my judgment will be that the application for an extension be dismissed.

Associate:

Dated:         16 November 2006