FEDERAL COURT OF AUSTRALIA

SZAPG v Minister for Immigration and Citizenship

[2007] FCA 372

SZAPG v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 2233 OF 2006

RARES J

5 MARCH 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for extension of time is refused.

2.                  The name of the first respondent be changed to ‘Minister for Immigration and Citizenship’.

3.                  The applicant pay the costs of the first respondent.

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

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     This is an application brought under O 52 r 15 of the Federal Court Rules for an extension of time in which to file a notice of appeal.  Until recently the applicant has been unrepresented both before the Federal Magistrates Court and this Court.  In essence the applicant seeks leave to file a notice of appeal from a decision of the Federal Magistrates Court, SZAPG v Minister for Immigration [2004] FMCA 383 given on 15 April 2004 which dismissed her application for review of a decision of the Refugee Review Tribunal made on 21 March 2003 and handed down on 11 April 2003.

2                     The applicant swore that she received the reasons of the Federal Magistrates Court and then asked an immigration lawyer to lodge an appeal to the Minister under s 417 of the Migration Act 1958 (Cth).  She said that as she did not understand the ‘migration rules’ properly she agreed with those lawyers that they should write to the Minister.  The Minister ultimately decided not to grant a more favourable decision under s 417 and dismissed her application in February 2005.  The applicant’s evidence did not extend to explaining when it was she learnt of the refusal of that application by the Minister.  She said that the fees of the immigration lawyers were very high and she could not pay them and ‘that’s why I didn’t know when my case was dismissed.  In my Federal Magistrate Court hearing the [immigration lawyer] also ceased to act for me because of their demand on paying a large amount of fee’.

3                     An application was made during the course of the hearing before me today for leave to adduce oral evidence expanding on the circumstances in which the applicant came to commence these proceedings only on 10 November 2006, a delay of something in the order of 21 months since the Minister refused her s 417 application.  The reasons which I gave earlier for refusing that application are attached in Schedule 1 to these reasons.

4                     The basis on which the applicant wishes to appeal are set out variously in a draft notice of appeal filed on 2 March 2007 and an earlier draft which makes an allegation, unparticularised, that the trial judge erred in law in finding that the applicant had not shown that the tribunal’s decision was affected by jurisdictional error.  The latest draft notice of appeal asserts that the trial judge erred in failing to find that the tribunal had made a jurisdictional error in its consideration of the future economic disadvantage which might be suffered by the applicant under the Refugees Convention and s 91R of the Act because the tribunal failed to have regard to:

(1)        the fact that the applicant would be living openly as a lesbian were she to return to Bangladesh;

(2)        the material change in the way the applicant would conduct her life if forced to return to Bangladesh compared to the situation prior to her departure required consideration of that change when assessing the significance of her employment experience prior to her departure;

(3)        the tribunal’s own finding that the applicant’s marital problems had caused a loss of standing within her employment as a non-government organisation (NGO) worker;

(4)        the fact that within Bangladeshi society employment difficulties for a person who was open about being a lesbian might be considerably greater than for a heterosexual woman ‘with [marital] and family problems’.

5                     Counsel for the applicant accepts that the substantive ground of appeal, particulars of which I have just set out, was not raised before the trial judge.  He says that it was included in the unparticularised claim of jurisdictional error and that his Honour ought to have identified it or, alternatively, the applicant ought be allowed to rely on it.  One of the considerations in this application for an extension of time is that this ground is still unsatisfactorily formulated having regard to the need to add to the notice of appeal in address.  But more fundamentally, I am of the opinion it is relevant to the exercise of my discretion that what is sought now to be raised was not a matter that was put to his Honour.  As Gibbs CJ and Wilson, Brennan and Dawson JJ said in Coulton v Holcombe (1986) 162 CLR 1 at 7:

‘It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.  If it were not so the main arena for the settlement of disputes would move from the Court of first instance to the appellate Court tending to reduce the proceedings in the former Courts to little more than a preliminary skirmish.  The powers of an appellate court with respect to amendment are ordinarily to be exercised within the general framework of the issues so determined and not otherwise.’

6                     The applicant says that these strictures ought not be so rigidly applied to a person in her position because she appeared below without legal representation and had to deal with a legal system materially challenging to any lay person.  In Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [14] Mansfield J noted in his consideration of what ‘special reasons’ may be for the purposes of the exercise of the Court’s discretion under O 52 r 15(2) that a person who had been in immigration detention, required the assistance of an interpreter during a hearing and had a limited knowledge of law and practice including a lack of any awareness that the time for an appeal ran from the date of judgment being pronounced rather than from the date of receiving a typed copy of the reasons for decision, removed that case from the usual course.  His Honour went on to note at [2001] FCA 1627 [15] that in that case the appellant acted promptly once he received the written copy of the ex tempore reasons for decision and that there was no suggestion of any prejudice occasioned to the respondent.

7                     An application for an extension of time in which to lodge an appeal is governed by considerations discussed in Jackamarra v Krakouer (1998) 195 CLR 516 and in Jess v Scott (1986) 12 FCR 187.  In Jackamarra 195 CLR at 519-520 Brennan CJ and McHugh J discussed the practice of the Courts and referred to what Lord Denning MR had said in R v Secretary for the Home Department;  Ex parte Mehta [1975] 1 WLR 1087 at 1091 where his Lordship said:

‘We often like to know the outline of the case.  If it appears to be a case which is strong on the merits and which ought to be heard, in fairness to the parties, we may think it is proper that the case should be allowed to proceed, and we extend the time accordingly.  If it appears to be a flimsy case and weak on the merits, we may not extend the time.  We never go much into the detail on the merits, but we do like to know something about the case before deciding whether or not to extend the time.’

Brennan CJ and McHugh J said that:

‘In that class of case, the respondent to the application [for an extension of time in which to lodge an appeal] has a vested right to retain the judgment, the subject of the appeal.’

Kirby J’s judgment is to similar effect (Jackamarra 195 CLR at 540-541 [66] par 4).

8                     In Jess 12 FCR at 191-192 Lockhart, Sheppard and Burchett JJ also referred to Lord Denning MR’s judgment in Mehta [1975] 1 WLR at 1091.  The Full Court said that what was needed to justify an extension of time was indicated in O 52 r 15(2) by the words ‘for special reasons’.  They said that these required an applicant to show a special reason why the appeal should be permitted to proceed though filed after the expiry of the 21 days and that this distinguished the case from the usual course according to which the time was 21 days.  The Court’s discretion is enlivened wherever it sees a ground which does justify a departure from the general rule in a particular case, that is, that there must be something to take the case out of the ordinary.  Their Honours said that the rule was not intended to constrict the broad measure of justice for an individual case and went on to say (Jess 12 FCR at 195):

‘It should not be overlooked that rule 15(2) enables leave to be granted “at any time”;  the “special reasons” relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period.  It would require something very persuasive indeed to justify a grant of leave after, for example, a year;  equally, it may be said, something much less significant might justify leave where a party is a few days late.  “Special reasons” must be understood in a sense capable of accommodating both types of situation.  It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.’

9                     In this case what is substantially relied on by the applicant is an assertion that the tribunal failed to have regard to the relevant consideration that because she wished to live as an openly gay person in Bangladesh she would be prejudiced to the point of suffering persecution in her employment.  The tribunal made a number of findings of fact including a finding that the reference in the applicant’s protection visa application to a loss of social standing as a result of her problem did not satisfy the tribunal that she had experienced substantial problems in gaining employment or would experience those problems on return given her level of education, family support and her experience as an NGO worker for some 10 years before leaving Bangladesh.  The tribunal made a finding that there was nothing in that part of the applicant’s claims to support any claim that she had in fact experienced or had a real chance of experiencing persecution including in regard to any economic disadvantage referred to in s 91R(2) of the Act.

10                  The tribunal found it was not satisfied that the current level of discrimination against homosexuals in Bangladesh amounted to persecution in Convention terms.  It therefore found that the applicant would be able to return to Bangladesh and seek to express her own identity, including through establishing lesbian relationships, with the support of her family and an effective level of protection from Bangladeshi authorities even if that level of protection were not at the level currently enjoyed in Australia.  These findings indicate that the tribunal had regard to relevant considerations and identified the applicant’s claims appropriately.

11                  The applicant’s counsel argued that the tribunal made a jurisdictional error in this assessment which was that the past was not supposed to be a safe predictor of the future and that in its assessment of the applicant’s position the tribunal did not take account of the critical difference between what had happened to her before she left and what might happen in the future, the difference being that she wished to return to her homeland as an openly gay person.  I am unable to identify that such an error is arguable on the basis of the material before me.  The tribunal’s decision betrays a consciousness that the applicant wished to return to her home as an openly gay person and that that was the claim which the tribunal was assessing.

12                  The tribunal was also mindful of the facts, and made findings, that after the applicant’s husband had discovered her having sex with her girlfriend in 1988 he told her friends and family about that and that she had claimed in her application to the tribunal that she had gradually lost her standing as a field worker with an NGO ‘as a result of her problem’.  I am unable to see that a sufficiently arguable case can be made out, were I minded to grant leave to amend the grounds of appeal to raise this issue or to allow the notice of appeal to be filed raising this issue having regard to the principle in Coulton 162 CLR at 7, that it would enjoy any sufficient prospects of success.

13                  Moreover the lengthy and unexplained delay of the applicant in commencing the application for an extension of time is of a very considerable concern.  The decision of the trial judge was given almost three years ago.  The circumstances in which the immigration lawyers then advising the applicant decided to apply under s 417 were not fully explained in the applicant’s evidence.  Nonetheless, I am prepared to give the applicant the benefit of the doubt that the lawyers explained to her only, or that she only understood from their explanation, that the avenue she chose to pursue following her unsuccessful application to the Federal Magistrates Court was the appropriate one rather than to engage in filing an appeal in this Court.  

14                  But the Minister decided her s 417 application unfavourably in February 2005.  The applicant has not explained with any detail how she came only to file the proceedings for an extension of time in November 2006.  I appreciate that she was unrepresented but it must have been apparent to her something had to be happening with her application, and she must have been anxious to know that.  Had the s 417 application been made within a reasonable time of the Federal Magistrates Court’s decision I find it difficult to accept, without any explanation to the contrary, that the applicant could have thought that nothing was going to happen for over 2 years.  Despite having counsel now acting for her and giving her advice, no explanation was offered in the material provided to the Court in two affidavits which the applicant filed, one as recently as 2 March 2007.  Belatedly, a further explanation was sought to be given earlier today which I refused to permit.

15                  I have given earnest consideration to the possibility that if I were to refuse the application substantial injustice might be done to the applicant but I am not able to perceive that that would be so.  I am of opinion that in this matter there are insufficient prospects of success of any appeal to warrant a grant of an extension of time in which to appeal.  I am also of opinion that the applicant has failed to demonstrate any special reasons why an extension of time should be granted for the purposes of O 52 r 15(2).  Accordingly, I would refuse the application. 

Associate:

Dated:         16 March 2007

SCHEDULE 1

REASONS FOR REJECTING ORAL EVIDENCE

1                     The applicant has sought today to adduce oral evidence to explain the circumstances in which she learnt of the decision of the Minister to refuse her application under s 417 of the Migration Act 1958 (Cth) and the connection between her ascertainment of that fact and the institution of this application on 10 November 2006.  The applicant’s affidavit of 8 November 2006 does not explain the connection in time between her learning of the dismissal of her s 417 application and the commencement of the proceedings.  Nor does her affidavit filed last Friday, 2 March 2007 deal with this obvious gap in her evidence.

2                     The requirement of O 52 r 15(3)(c) that an application for leave to file a notice of appeal out of time should be accompanied by an affidavit setting out, among other things, the reasons why leave should be given has not been addressed in this critical respect.  The nature of the evidence which the applicant proposes to lead was described by her counsel as being that she had decided to make her own inquiries as to the fate of her s 417 application and after finding out that it had been rejected at that point she made her application for an extension of time.

3                     Were I to allow this evidence to be given orally now it seems to me that I would have to grant an adjournment to the Minister to enable him to investigate the assertions being made.  The chronology of the events which the Minister would need to investigate commences with the Federal Magistrates Court’s dismissal of the applicant’s application for review of the tribunal’s decision in an ex tempore decision given on 15 April 2004 (SZAPG v Minister for Immigration [2004] FMCA 383).  The applicant wrongly identified the date of that decision as 17 June 2004 in her first affidavit.  Following that she says that she then engaged immigration lawyers who advised her to, and they did in fact, lodge an application under s 417 with the Minister.

4                     The applicant says that that claim was dismissed in about February 2005 but her present application to this Court was not filed until 10 November 2006.  There is thus an obvious and substantial delay of almost 21 months from the time at which the s 417 application was rejected.  The Minister would be entitled to investigate with the applicant’s previous immigration lawyers when, if at all, she was apprised of the dismissal of the s 417 application and to take other steps to ascertain whether or not some inquiries were made by the applicant of the Department or the Minister, and when, to discover the fate of her application.

5                     I am mindful that were I to reject this evidence there may well be some further application made by the applicant but having regard to the overall interests of justice I am of opinion that it would be unjust to the Minister for me to accede to this application today which would require an adjournment.  I have had regard to the fact that it may be possible to make an order that the applicant pay the Minister’s costs of the adjournment but her affidavit of 8 November 2006 suggests an impecuniosity on her part which may make such an order pyrrhic so far as the Minister is concerned.

6                     I am of opinion that the proper exercise of my discretion is to reject the application to adduce further evidence.