FEDERAL COURT OF AUSTRALIA

SZJRV v Minister for Immigration & Citizenship [2008] FCA 298

MIGRATION – Federal Court Rules 1979 (Cth), O 52, r 15 – Application for extension of time – application dismissed – no prospects of success

Migration Act 1958 (Cth), s 424A

Federal Court Rules 1979 (Cth), O 52, r 15

Jess v Scott (1986) 12 FCR 187 followed

Kalanje v Minister for Immigration & Multicultural Affairs [2006] FCA 1618 followed

W105/99A v Minister for Immigration & Multicultural Affairs [2001] FCA 1786 followed

WACF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1385, 79 ALD 154 followed

SZJRV v MINISTER FOR IMMIGRATION & CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 2378 OF 2007

FLICK J

7 MARCH 2008

SYDNEY

            GENERAL DISTRIBUTION

THE COURT ORDERS THAT:

1.    The Application to extend time for the filing of a Notice of Appeal is refused.

2.    The Applicant is 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                     In these proceedings the Applicant seeks an extension of time within which to appeal from a decision of the Federal Magistrates Court given on 12 November 2007. That Court dismissed an application seeking to review a decision of the Refugee Review Tribunal.

2                     Order 52, r 15(1) and (2) of the Federal Court Rules 1979 (Cth) provide as follows:

(1) The notice of appeal shall be filed and served:

(a) within 21 days after:

(i)   the date when the judgment appealed from was pronounced;

(ii)  the date when leave to appeal was granted; or

(iii) any later date fixed for that purpose by the court appealed from; or

(b) within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

(2) Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.

3                     The Application seeking an extension of time was filed on 4 December 2007, that being calculated by the Respondent Minister to be 3 or 4 days out of time. Notwithstanding the shortness of the extension sought, the Application is opposed. It is submitted on behalf of the Minister that there is no satisfactory explanation as to why the appeal was not filed within time.

4                     There is unquestionably a discretion to extend time if “special reasons” be shown. That expression in r 15(2) describes a flexible discretionary power, but a power requiring an applicant to nonetheless justify a departure from the ordinary rule prescribing a period of 21 days: Jess v Scott (1986) 12 FCR 187. Lockhart, Sheppard and Burchett JJ there observed at 195:

It should not be overlooked that r 15(2) enables leave to be given “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.

5                     The explanation for the delay provided by the Applicant is simply that he was unaware of the 21 day period.

6                     Had consideration been confined simply to the short extension of time required, the discretion could well have been exercised favourably to the Applicant. The explanation provided is, with respect, not satisfactory. But, as was recognised by the Full Court, a less persuasive explanation may be required when the extension required is for a comparatively short period of time.

7                     Consideration, however, is not confined to such matters. Consideration may also be given to the prospects of success of the Applicant should an extension be granted: W105/99A v Minister for Immigration & Multicultural Affairs [2001] FCA 1786 at [13]; WACF v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1385, 79 ALD 154; Kalanje v Minister for Immigration & Multicultural Affairs [2006] FCA 1618.

8                     In the present proceedings, it is not considered that any appeal has such prospects of success as to warrant granting an extension of time. The decision of the Refugee Review Tribunal was founded primarily upon adverse findings as to credit, being findings open to the Tribunal. The conclusions of the Tribunal, for example, included the finding in respect to one claim that:

…The Tribunal considers this fanciful and far-fetched claim quite typical of the kind of ill-conceived ambits presented by the Applicant in the course of this case.

The Tribunal also, and again only by way of example, further concluded that:

… the Tribunal dismisses the Applicant’s attempts to characterize his travel to the UAE as flight motivated by Convention-related fear as ill-conceived and poorly-argued fabrications. The Tribunal does not accept on the evidence before it that the Applicant’s travel to the UAE was other than employment-motivated.

9                     The Federal Magistrates Court reviewed the decision of the Tribunal and found no error in the conclusions of the Tribunal. No self-evident error is exposed upon a reading of the decision of the Tribunal or, more relevantly, the decision of the Federal Magistrate.

10                  Written submissions filed by the Applicant in this Court addressed three matters, namely submissions that:

(i)        the Tribunal gave “[n]o weight to the documents”, those documents being identified as a statutory declaration and four letters;

(ii)       the Tribunal “erred in this case in relation to my credibility”; and

(iii)     there had been a breach of s 424A of the Migration Act 1958 (Cth).

The first two submissions are rejected as an impermissible attempt to challenge findings of fact. With reference to the letters, for example, the Tribunal concluded:

The Tribunal gives no weight to the letters written in support of the Applicant.

The Tribunal thus considered the letters before it and reached a conclusion as to the weight to be given to them. That was a matter for the Tribunal and not open to challenge before the Federal Magistrate or this Court. The submission as to a breach of s 424A is rejected because, as found by the Federal Magistrate, the “information” in issue falls within s 424A(3)(a).

11                  The Applicant appeared unrepresented before this Court this morning, although he did have the benefit of an interpreter. He did not add to the written submissions which had been filed on his behalf.

12                  Accordingly, leave to extend time is refused.

Orders

13                  The orders of the Court are:

1.    The Application to extend time for the filing of a Notice of Appeal is refused.

2.    The Applicant is to pay the costs of the First Respondent.

Associate:

Dated:         7 March 2008