FEDERAL COURT OF AUSTRALIA

SZDTU v Minister for Immigration and Citizenship [2007] FCA 1135

SZDTU v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

No NSD 1040 of 2007

FINN J

2 AUGUST 2007

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for an extension of time to file and serve a Notice of Appeal be dismissed with 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 file and serve a Notice of Appeal against a decision of a Federal Magistrate dismissing an application for judicial review of a decision of the Refugee Review Tribunal.  Order 52 r 15(2) of the Federal Court Rules empowers a court or a judge “for special reasons” to give leave to file and serve a notice at any time.  It is well accepted that the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is 21 days.  A special reason is a ground which takes the case out of the ordinary:  see Jess v Scott (1986) 12 FCR 187 at 195.  The guiding principles relevant to the exercise of the court’s discretion are well known:  see generally the judgment of Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349.

2                     The background proposition against which applications to extend time are to be considered is that extensions are not to be granted unless it is proper to do so.  Time limits have their purposes.  Among the considerations of which account ought properly be taken in a case such as the present are whether there is some acceptable explanation for the delay and the merits of the application itself.  In this case, the bona fides of the proposed appeal and the prime facie strength of the ground of appeal are of no little importance, as I will indicate. 

BACKGROUND

3                     The applicant is an Indian national who, as indicated above, applied unsuccessfully for a Protection (Class XA) visa.  The claims he advanced for “refugee” status were based on persecution for reasons of political opinion and related essentially to his alleged political activities in virtue of his membership of the Communist Party.  The application was refused by the Refugee Review Tribunal on various bases.  It was found that he repeatedly lied in order to enhance his claims for a protection visa and the Tribunal found that this went both to the applicant’s credibility and the credibility of his claims.  Some of his claims were implausible.  He made claims that were inconsistent with independent country information.  And in a particular instance there was no evidence to support that such fears as he may have had of harm were related to a Convention reason. 

4                     What is notable about the Tribunal’s conduct of this hearing is that, in near text book fashion, it sent a particularly detailed s 424A notice to the applicant outlining at considerable length eight particular matters each of which it indicated may provide the reason or part of the reason for deciding that the applicant was not entitled to a protection visa.  The applicant simply did not respond in any meaningful way to the s 424A letter although he did make gratuitous comments about the Tribunal itself such as that it was “trying to fix me down on some other reason as my application has been remanded” and “the Tribunal instead of considering my case for a refugee status is trying to find fault with each and every thing and the Tribunal has pre determined to dismiss my case”.  It concluded with the observation “the [s 424A] letter shows that even if I give any reply that is not going to be considered and the Tribunal is going to dismiss my case”. 

5                     The Tribunal in the event found against the applicant on all of the eight matters referred to.  It gave very detailed reasons for its so doing.  It is unnecessary for the purpose of this application to deal with any of these matters in detail. 

6                     The application to the Federal Magistrates Court for judicial review was based upon the following grounds:

“(1)      To reconsider the decision of RRT on the facts I give to RRT and DIMIA.

(2)       I strongly feel the decision of RRT does not justice my cause.  I grately [sic] disappointed.

(3)       I have no other GD than appealing for the reconsideration of the Tribunal decision.”

7                     As the learned Federal Magistrate indicated, the application was no more than one for a re-hearing or for re-consideration of the applicant’s case on its merits.  The Federal Magistrate indicated correctly that unless a factual error was shown to be related to a jurisdictional fact or of some other error which was a manifestation of a jurisdictional error, the error would not ground judicial review.  His Honour indicated the finding of facts and conclusions which the Tribunal reached were open to it on the material before it.  I simply note in passing that having read what I consider to be a full and well reasoned Tribunal decision, I am satisfied as to the correctness of the Federal Magistrate’s conclusion.  It reflects my own. 

8                     Additionally, at the hearing and consistent with the observations made in his reply to the Tribunal’s s 424A letter, the applicant made allegations (i) of bias and (ii) of failure to consider his claims.  Both were properly rejected.  As to the bias claim, the learned Federal Magistrate indicated there was nothing in the Tribunal’s decision record which would indicate actual bias on the Tribunal’s part and there was nothing which indicated that it had approached the applicant’s application with a closed mind.  The learned Federal Magistrate went on to observe that there was evidence “that it undertook a conscientious examination of the matters which had been raised by the applicant, weighed them and came to the conclusion which it did.”  I would endorse this and only add that it is not bias for a Tribunal conscientiously to follow and apply procedures prescribed in the statute under which it is acting.  Section 424A is such a procedure.

9                     His Honour equally rejected the argument that the applicant’s claims had not been considered.  The contrary patently was the case.

THE PRESENT APPLICATION

10                  The application for leave was filed 12 days out of time.  The applicant asserts that he believed that he had 28 days within which to appeal to this Court and that he in fact only received the Federal Magistrate’s order and judgment 28 days after it had been delivered.  In his accompanying affidavit he goes on to indicate that his delay was not wilful nor wanton. 

11                  I consider his Draft Notice of Appeal is a singularly unilluminating document.  It starts with the proposition that the Federal Magistrate “erred in law by not finding that the Refugee Review Tribunal had made a jurisdictional and factual error in reaching the conclusion that the Appellant is not entitled to Protection Visa.”  It then goes on simply to make assertions that the Tribunal failed to see that the applicant satisfied the definition of refugee;  that the Tribunal erred in stating there was inconsistency between his application and the version in the Tribunal hearing;  that the Tribunal was always one sided;  that he had been denied a fair and proper trial and the principles of natural justice had been denied;  that it relied on country information “rather than the real facts stated by the applicant”;  and that the Tribunal had to “help the applicant find the truth and see appropriate protection is granted.”  The applicant was directed to file submissions in support of his application.  None were filed.

12                  The application itself is opposed by the first respondent, first because it is said no satisfactory reasons have been given explaining the delay, but, secondly and more importantly, because the case has no real prospects of success.  For my own part I need not consider the question whether acceptable explanation for the delay was being given.  I clearly am satisfied that the case to be prosecuted on the appeal has no prospects of success at all.  The particular matters relied upon in the Notice of Appeal are concerned in the main with the merits of the matter.  What is being objected to is reasoned fact finding by the Tribunal.  I would note in passing that the applicant in his oral submissions sought to place real emphasis on what he considered were factual errors. 

13                  To the extent that the matters relied upon go beyond a claim for merits review, the grounds clearly are misconceived and in the case of the bias allegation, offensive.  As I have already indicated, I am in complete agreement with the decision of the Federal Magistrate.  There is nothing in the decision record of the Tribunal that provides any support at all for the allegation of bias and of a closed mind.  The Tribunal member was simply discharging its obligation to the applicant when it sent the s 424A letter to the applicant.  There is equally nothing to suggest that there has been anything other than a fair and proper hearing of his application.  The Tribunal was entitled to prefer country information to the applicant’s evidence, the moreso as it had material before it which amply justified its adverse credibility finding.  Equally, the applicant misconceives the function of the Tribunal which is not to help the applicant make his case.

14                  Because I am satisfied that an extension of time would serve no useful purpose and would not be in the interests of justice, I refuse the application.

15                  I will order that the application for an extension of time to file and serve a Notice of Appeal be dismissed with costs.

Associate:

Dated:         2 August 2007