FEDERAL COURT OF AUSTRALIA

SZHXH v Minister for Immigration and Citizenship [2008] FCA 231

MIGRATION – application for an extension of time to appeal against a judgment of a Federal Magistrate – application received outside of time prescribed by the Federal Court Rules – no explanation for delay provided – no basis on which an application for an extension of time could be granted – leave to appeal required in any case – no application for leave to appeal made – no basis disclosed on which leave to appeal could be granted – no appearance at the hearing – application dismissed pursuant to s 25(2B)(bb)(ii)

Federal Court of Australia Act 1976 (Cth), s 24(1A), s 25(2B)(bb)(ii)

Federal Court of Australia Rules, O 52 r 5

Federal Magistrates Court Rules, Rule 44.12(1)(a), Rule 44.12(2) 

Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38

SZHXH v Minister for Immigration and Anor [2007] FMCA 915

SZHXH v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 1911 OF 2007

BUCHANAN J

6 march 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application is dismissed pursuant to section 25 (2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).

2.                  The applicant file any Notice of Motion seeking to set aside the order dismissing the application by 4pm on 30 April 2008.

3.                  The applicant pay the respondent’s costs of the proceedings

THE COURT DIRECTS THAT:

1.                  The Registrar not accept any further documents for filing from the applicant after 30 April 2008 without the leave of a Judge first obtained.

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

REASONS FOR JUDGMENT

BUCHANAN J:

1                     On 22 February 2008 I made an order dismissing an application for an extension of time in which to appeal, and other, consequential orders, including an order for costs.  I did not, at that time, give reasons for the order.  What follows are my reasons for making the orders on 22 February 2008.

2                     The applicant wished to bring an appeal against a judgment of the Federal Magistrates Court of Australia (‘the FMCA’) (SZHXH v Minister for Immigration and Anor [2007] FMCA 915) which was delivered on 5 June 2007.  She took no step to do so until 24 September 2007 when she filed an application for an extension of time in which to file and serve a Notice of Appeal.  The procedural difficulties which face the applicant before any appeal can be heard are greater than she appears to appreciate. 

3                     The decision of the FMCA was a decision under Rule 44.12(1)(a) of the Federal Magistrates Court Rules to dismiss an application as one not disclosing an arguable case.  Rule 44.12(2) of the Federal Magistrates Court Rules indicates that such a judgment is an interlocutory one.  Authority in this Court supports that conclusion (see Nguyen v Minister for Immigration and Citizenship [2007] FCAFC 38 at [17]).  Apart from an extension of time leave is required to file the appeal which the applicant wishes to pursue (Federal Court of Australia Act 1976 (Cth), s 24(1A)).  No application for such leave has been made.  Although, in a draft Notice of Appeal attached to her affidavit in support of the application for an extension of time, the applicant suggests that leave to appeal was granted on 5 June 2007 (the date of the decision of the FMCA), I am satisfied that this is an error due to the applicant’s misunderstanding of the necessary procedures.  It may be assumed that the applicant would make an application for leave if she appreciated it was necessary to do so.  In the circumstances I will treat her application for extension of time as also indicating a desire to obtain leave to appeal against an interlocutory judgment.

4                     The application before the Court was accompanied by an affidavit in which the only substantive content was as follows:

 ‘I was advised by the recipient that they received outcome letter from the Federal Magistrate Court.  But it is too late for me to lodge application to the Federal court.  I am late to lodge the application.  I applied for extension.  Hope you could take my application.  I fear to go back.  I was persecuted in China.  If I return, I would be put in jail.’

5                     There was no basis disclosed by the application, therefore, on which an application for an extension of time could be granted or leave to appeal be granted.  No explanation for the delay was offered.  Under O 52 r 5 of the Federal Court of Australia Rules an application for leave to appeal must be made within 21 days after judgment was pronounced.  The applicant did not make an application until more than three months had passed.  Her present application to this Court was liable, for that reason alone, to be dismissed.

6                     The applicant did not appear at the hearing of her application.  I permitted the Minister’s representative to file material showing advice of the date for hearing the application and service of the Minister’s written submissions.  The Minister’s representative asked that I dismiss the application pursuant to s 25(2B)(bb)(ii) of the Federal Court of Australia Act 1976 (Cth).  I was satisfied that was an appropriate course as it allows a further opportunity to engage the jurisdiction of the Court should the absence of the applicant prove to be by reason of circumstances beyond her control.  However, in my view, it was desirable that any such right be exercised within a reasonable time – i.e. before the end of April.  I made an order to that effect and directed that further documents not be accepted for filing from the applicant after that time unless the leave of a judge was obtained.

7                     At the request of the Minister’s representative I made an order for costs.  In the circumstances as these appear at the moment such an order is appropriate.

Associate:

Dated:         6 March 2008