FEDERAL COURT OF AUSTRALIA

SZLAF v Minister for Immigration & Citizenship [2008] FCA 219

MIGRATION – Migration Act 1958 (Cth) – application for leave to appeal – filed out of time – leave refused – no explanation provided for delay – no prospects of success – new ground of appeal sought to be relied upon – no explanation provided 

Federal Court of Australia Act 1976 (Cth), s 24

Federal Court Rules 1979 (Cth), O 52

Federal Magistrates Court Rules 2001 (Cth), r 44

Migration Act 1958 (Cth), s 424A, s 425

Coulton v Holcombe (1986) 162 CLR 1 considered

Jess v Scott (1986) 12 FCR 187 considered

SZBYR v Minister for Immigration & Citizenship [2007] HCA 26, 235 ALR 609 followed

VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123, 206 ALR 471 followed

VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 cited

SZLAF AND SZLAG v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2328 OF 2007

FLICK J

4 March 2008

SYDNEY

THE COURT ORDERS THAT:

1.    The Application for Leave to Appeal as filed on 26 November 2007 be dismissed.

2.    The Applicants to 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

1                     This is an Application for Leave to Appeal from a decision of the Federal Magistrates Court given on 25 October 2007: SZLAF v Minister for Immigration & Citizenship [2007] FMCA 1913.  

2                     The Application as filed on 26 November 2007 “applies for an order that compliance with Order 52, subrule 5(2) be dispensed with”. Order 52, r 5 of the Federal Court Rules 1979 (Cth) requires an Application to be filed within 21 days after judgment is pronounced unless that requirement is dispensed with.  Rule 5 applies where “an appeal from the judgment lies to the Court only with leave.” Reliance upon this rule, it is considered, is misplaced.

3                     The Applicants are husband and wife. The husband has applied for a protection visa; the wife did not claim in her own right to be a refugee but sought to be included as a member of the family unit. Both were invited to a hearing before the Refugee Review Tribunal pursuant to s 425 of the Migration Act 1958 (Cth) but failed to appear.

4                     Before the Federal Magistrates Court again there was no appearance. The application to that Court included as grounds upon which review was sought an assertion that there was an “incorrect application of the law to the facts” and a denial of procedural fairness. The grounds were rejected and the application dismissed. Relevantly, the order of the Federal Magistrate was “the application is dismissed pursuant to Rule 44.12(1)(c)”.

5                     In this Court the Draft Notice of Appeal sought to raise as the only ground of appeal a breach of s 424A of the 1958 Act. An Affidavit in support asserts that “there was certain adverse information used by the tribunal to affirm the decision under review and the Tribunal did not disclose the information in accordance with s 424A(1)”. The “certain adverse information” is not further identified. This ground was not raised for resolution before the Federal Magistrates Court.

6                     The First Applicant appeared before this Court unrepresented, but with the benefit of an interpreter.

7                     The Application raises at least two, and possibly three, discrete issues.

8                     First, the Applicants seek leave to appeal — but leave, it is considered, is not required. That which is required is an extension of time within which to file the appeal. The Federal Magistrate made his order based upon Rule 44.12(c) of the Federal MagistratesCourt Rules 2001 (Cth). Rule 44.12 provides as follows:

Show cause hearing

(1) At a hearing of an application for an order to show cause, the Court may:

(a) if it is not satisfied that the application has raised an arguable case for the relief claimed  - dismiss the application; or

(b) if it is satisfied that the application has raised an arguable case for the relief claimed - adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or

(c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application.

(2) To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory.

9                     The order as made is thus not an interlocutory judgment but a final order not attracting the requirement to seek leave imposed by s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

10                  Second, although leave to appeal is not required, the Application as filed was outside the 21 day period prescribed by O 52 r 15(1)(a) of the Federal Court Rules. Although the extension of time which is required may be short, it is considered that an extension of time should be refused and the Application should be dismissed. No reason is advanced in the present proceedings as to why there has been no compliance with the time limit prescribed by the Rules. 

11                  It is O 52 r 15(2), and not O 52 r 5(2), which confers the relevant discretion in the present proceedings to extend time and provides that an extension may be granted “for special reasons”. But no occasion for the exercise of that discretion would usually arise where no explanation at all has been provided. An extension of time, even for a short period of time, it is considered cannot (or should not) be granted unless there is a proper factual foundation advanced in support of a favourable exercise of the discretion.  An absence of prejudice to a Respondent and the importance of the decision-making process to an Applicant are but two of the considerations relevant to the exercise of the discretion. Without more, however, it is not considered that an Applicant for an extension of time who advances no explanation at all as to why time limits have not been complied with will normally be able to say that his case justifies a departure from the ordinary rule: cf Jess v Scott (1986) 12 FCR 187.

12                  Third, no error is in any event exposed by the reasons of the Federal Magistrate and it is considered that the Application has no prospects of success. Whether consideration be given to the grounds agitated before the Federal Magistrate or extended to include consideration as to a breach of s 424A, the Application is without merit.

13                  The “information” envisaged by the Draft Notice of Appeal has not been identified and it is not possible to separately identify any such “information” on the materials now before this Court. When asked at the hearing before this Court to identify the “information” to which the Draft Notice of Appeal refers, the First Applicant responded:

“I don’t know anything.”

When the question was further pursued, he responded:

“Someone else has prepared this application.”

14                   It is not considered that the present proceedings give rise to any breach, or potential breach, of s 424A. The Tribunal’s decision is simply based upon a lack of satisfaction that the husband’s account gave rise to “a well founded fear of harm for any Convention reason”.  The Tribunal thus made (inter alia) the following findings:

Apart from vague, imprecise and unsupported allegations, the applicant has provided no real detail about his claim to fear harm arising from his partner, politicians, or the “mafia” and “thugs”.

The applicant has failed to attend his scheduled hearing and present oral arguments and evidence to explain himself and:

§         Without the opportunity to question the applicant to explore the claims made by the applicant; and

§         In light of his failure to provide any documentary evidence to support his claims, and;

§         Without the Tribunal being able to question the applicant to ascertain answers to the questions raised through his written claims …;

The Tribunal cannot be satisfied that the applicant has a well founded fear of harm for any Convention reason in India in the reasonably foreseeable future.

15                  A review of the reasons for decision of the Tribunal does not disclose any “information” which could potentially fall within the reach of s 424A and does not, without the assistance of the Applicants, further identify the “information” envisaged in the Draft Notice of Appeal. The reasons of the Tribunal record its assessment of the Applicants’ case and its reasons for the conclusion reached. The word “information” does not extend to such an assessment of the evidence before the Tribunal: VAF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 123, 206 ALR 471. Finn and Stone JJ there observed that:

[24] …the word does not encompass the Tribunal’s subjective appraisals, thought processes or determinations…; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc…

Approved: SZBYR v Minister for Immigration & Citizenship [2007] HCA 26 at [18], 235 ALR 609 at 616 per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.

16                  Albeit an issue which it is unnecessary to consider separately is whether leave should be given to rely now upon a ground not advanced for resolution by the Federal Magistrate. Again, no reason has been advanced as to why this ground was not raised for resolution by the Federal Magistrates Court. A failure by a party to attend either before the Tribunal or the Federal Magistrates Court, in the absence of explanation, creates an almost insuperable obstacle to later being permitted to agitate in this Court a contention not previously relied upon. 

17                  Although it must constantly be borne in mind that a refusal of a protection visa may be a decision of fundamental importance to an applicant, it is equally important to also bear in mind that it is fundamental to the administration of justice that substantial issues should be resolved at first instance and not on appeal: cf Coulton v Holcombe (1986) 162 CLR 1 at 7 (appl’d: VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [47]).

18                  Had it been necessary to consider whether leave should be granted to rely upon a ground not previously relied upon, leave would have been refused.

ORDERS

19                  The orders of the Court are:

1.      The Application for Leave to Appeal as filed on 26 November 2007 be dismissed.

2.      The Applicants to pay the costs of the First Respondent.

Associate:

Dated:         4 March 2008