FEDERAL COURT OF AUSTRALIA

MZXFU v Minister for Immigration & Multicultural Affairs [2006] FCA 1593 

MZXFU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VID 474 OF 2006

SUNDBERG J

24 NOVEMBER 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application for an extension of time to apply for leave to appeal is dismissed.

2.                  The applicant is to pay the respondent’s costs.

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 extension of time in which to apply for leave to appeal from a decision of the Federal Magistrates Court dated 3 April 2006.

2                     The applicant is a Pakistani who has claimed to have a fear of persecution because he is suspected of being Ahmadi and at risk of attack by Islamic extremists. The Refugee Review Tribunal (‘Tribunal’) affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa. It did so because it did not accept that the applicant had been threatened by religious extremists or that he has a genuine fear of persecution if he returns to Pakistan.

3                     The applicant applied to the Federal Magistrates Court for an order that the respondent show cause why a remedy should not be granted to him. The application was dismissed with costs. The Federal Magistrate, in dealing with the two grounds raised by the application, held that:

·                    a reference in the Tribunal’s reasons to India rather than Pakistan was a typographical error and did not amount to an error of law; and

·                    the Tribunal’s conclusion that the applicant would be able to obtain state protection, if in fact it reached such a conclusion, was not relevant to its decision since it found that there was nothing the applicant needed to be protected from.

4                     Given the nature of the matters sought to be raised by the draft notice of appeal, it is not necessary to go into any further detail about the applicant’s background. These matters have been fully set out in the reasons of the Tribunal and the Federal Magistrates Court.

5                     Rule 44.12 of the Federal Magistrates Court Rules provides for a show cause hearing to be held in proceedings under the Migration Act 1958. Under rule 44.12(1)(a) the Federal Magistrates Court may dismiss an application for an order to show cause where it is not satisfied that the application has raised an arguable case for relief. Rule 44.12(2) provides that such a dismissal is interlocutory; leave is therefore required to appeal. Pursuant to order 52 rule 5(2)(a) of the Federal Court Rules, an application for leave to appeal must be filed within 21 days of the date on which the judgment appealed from was pronounced. No application for leave to appeal was filed within this time limit. It follows that the applicant, in order to proceed, requires both an extension of time to apply for leave to appeal, and leave to appeal.

6                     It is in the discretion of the Court whether to extend time for the making of the application for leave to appeal. Relevant to that discretion is the likelihood of leave to appeal being granted. The relevant principles in determining whether leave to appeal should be granted are whether, in all the circumstances, the decision is attended with sufficient doubt as to warrant its consideration by an appeal court, and whether a substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. This in turn requires a consideration of the issues the subject of the draft notice of appeal.

7                     There are three grounds of appeal set out in the draft notice of appeal. They are, set out in full and without correction:

“1.       No body represent me at the Date of hearing.

2.         Decision made without discusing the case.

3.         Field New evidence and particulars’ about my case.”

8                     The first proposed ground of appeal must fail. There are very limited circumstances in which an unrepresented litigant will be entitled, in the interests of justice, to a stay in order to allow legal representation to be obtained: Dietrich v The Queen (1992) 177 CLR 192. The applicant does not fit within these narrow circumstances.

9                     It is unclear what the second proposed ground of appeal means. There is no obligation on the Tribunal or the Federal Magistrates Court to ‘discuss’ the case. The Tribunal must consider the evidence that is before it and make its decision based on that evidence. The Tribunal’s reasons show that, prima facie, it performed that task. The Federal Magistrates Court’s duty is to consider the grounds raised in the application before it. Its reasons for judgment show that, prima facie, it performed that task. The second proposed ground of appeal does not raise any error of law and has no prospects of success.

10                  The third proposed ground of appeal probably refers to new evidence and particulars that the applicant either sought to file before the Federal Magistrate or wishes to file before this Court. At the hearing, I explained to the applicant that I was unable to consider any new evidence. This ground misunderstands the purpose of the Magistrates Court and this Court in conducting judicial review of the decision of the Tribunal. Judicial review does not involve a consideration of the evidence. It is concerned with whether the Tribunal’s decision was attended by error of law. New evidence and particulars are not relevant to that enquiry and cannot, save in exceptional cases, be admitted in judicial review proceedings. This ground of appeal has no prospects of success. For the same reason, the issues raised by the applicant at the hearing, which all concerned findings of fact made by the Tribunal, do not give rise to errors of law that can be corrected in this Court.

11                  It follows that none of the proposed grounds of appeal has any prospect of success. The Federal Magistrate’s decision is therefore not attended by any doubt. There is no evidence that the applicant will suffer substantial injustice if leave to appeal is refused. Were it necessary to decide the question, leave should therefore be refused. However, in circumstances where the appeal itself is futile, the Court will not grant an extension of time in which to apply for leave to make that appeal: VUAD of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 186. The application for an extension of time is therefore refused with costs.

Associate:

Dated:         24 November 2006