FEDERAL COURT OF AUSTRALIA

SZKTN v Minister for Immigration and Citizenship [2008] FCA 633

SZKTN v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 2487 of 2007

RYAN J

SYDNEY

8 may 2008

THE COURT ORDERS THAT:

1.      The application for an extension of time within which to file and serve a notice of appeal be dismissed.

2.      The applicant pay the first respondent’s costs, fixed in the sum of $800.

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

REASONS FOR JUDGMENT

1                     There is, before the Court, an application for extension of time to file and serve a notice of appeal from a decision of Turner FM handed down on 19 November 2007.  The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”), dated 15 May 2007. 

Background

2                     The applicant is a citizen of the People’s Republic of China and arrived in Australia on 12 December 2006.  On 15 December 2006 the applicant filed an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.  On 20 January 2007 a delegate of the first respondent (“the Minister”), refused the applicant’s application for a protection visa. 

3                     On 26 February 2007 the applicant filed an application for review by the Tribunal of the delegate’s decision and a hearing was conducted by the Tribunal on 4 April 2007.  Before the Tribunal the applicant claimed to fear persecution for reasons of his adherence to Falun Gong if he were to return to China.  He claimed that his house had been raided by police in 1999 and that he had been fined 5000 yuan for refusing to cooperate with them.  At some stage, the applicant claimed he was arrested again in Beijing for Falun Gong related activities and illegally detained for a period.  According to the applicant, he was arrested yet again in 2004 and imprisoned for 22 days.  He then elected to come to Australia in order to practise Falun Gong freely. 

4                     On 15 May 2007 the Tribunal delivered its decision affirming the decision of the delegate not to grant the applicant a protection visa.  In its reasons the Tribunal did not accept that the applicant had ever been a Falun Gong practitioner either in Australia or in China.  It found his knowledge of Falun Gong insufficient and inconsistent with that of a person who had practised Falun Gong over the period of time which the applicant claimed.  The Tribunal consequently found that the applicant had not been persecuted in China for the reason of his adherence to Falun Gong and that he did not hold a well-founded fear of future persecution for that reason.

5                     On 12 June 2007 the applicant filed an application in the Federal Magistrate’s Court for judicial review of the Tribunal’s decision.  Before Turner FM the applicant claimed that the Tribunal had committed an error of law by failing to consider favourable information and by lacking evidence on which to base its decision.  The applicant also alleged that the Tribunal had contravened s 424A of the Migration Act 1958 (Cth) (“the Act”), and reiterated several of his factual claims.  The learned Federal Magistrate found that the Tribunal’s decision was not infected with jurisdictional error and ordered accordingly that the application be dismissed with costs.

6                     On 19 December 2007 the applicant filed an application for extension of time to file and serve a notice of appeal in this Court.  The application was accompanied by a supporting affidavit sworn 5 December 2007, in which he deposed;

‘1.        The application was refused by a delegate of the first respondent on 20 Jan 2007 and by the Tribunal on review on 23 April 2007.  On 15 December 2006 the application lodged to the Department of Immigration for a protection visa.  In this application I claimed to fear persecution in China on the basis my practice of Falun Gong. 

In my application I set out the following grounds.

Ground One;

(a)       the decision involved an important exercise of the power conferred under the Migration Act and Regulation. 

(b)       the respondent did not carefully consider the information which is in favour of the applicant. 

(c)        there was no evidence or the other materials to justify the making of the decision. 

Ground Two

(a)       I am a citizen of China.  If I back to my country I will be risk of suffering persecution; with the meaning of the 1951 Convention relating to the status of Refugees and the 1967 protest relating to the status of Refugees. 

(b)       Members of Refugee Review Tribunal failed to understand my claims and failed to consider relevant matters;

(c)        The Tribunal failed to comply with its obligations under s 424A of the Migration Act 1958 (Cth).  Information that was the reason or part of the reason for the Tribunal affirming its decision included information contained in my protection, which information was not provided to the applicant in accordance with s 424A.

7                     The draft notice of appeal attached to the affidavit lists the following grounds of appeal;

‘1.        the decision involved an important exercise of the power conferred Migration Act and Regulations.

2.         The respondent did not carefully consider the information which is in favour of the applicant.

3.         There was no evidence on the other materials to justify the making of the decision.’

8                     The orders sought in the draft notice of appeal are:

‘1.        a writ of certiorari quashing the decision of the Second Respondent:

2.         a writ of mandamus compelling the Second Respondent to rehear the matter;

3.         a writ of prohibition issue to the First Respondent preventing them from taking any steps to implement the decision of the Delegate of the First Respondent.

4.         Costs;  and any other orders the Court deemed fit.’

9                     On 10 January 2008 Deputy District Registrar Farrell made directions which included the following order;

‘(4)      No later than five (5) clear working days before the hearing date the applicant file and serve full written submissions upon which the applicant seeks to rely in support of the application, and in support of any application were the Court to grant an extension of time and/or leave to application so that the Court is able to assess in the application whether there is utility in granting the extension of time and/or leave to application.’

10                  The applicant has not filed any written submission and consequently has failed to comply with the Registrar’s directions.  That omission was explained by the applicant today as due to his lack of knowledge of English and his illness and his friends’ inability to help him.  The applicant was afforded an opportunity to make oral submissions to this Court in support of his application, but conceded that he did not have the ability to make any useful submissions and accordingly did not do so.

The Minister’s submissions

11                  In his written submissions the Minister submits that O 52 r 15 of the Rules of this Court requires that “The notice of appeal shall be filed and served – (a) within 21 days - (i) after the date when the judgment appealed from was announced”.  The Minister further contends that an applicant seeking leave to file and serve a notice of appeal out of time must demonstrate special reasons for the grant of that leave in accordance with O 52 r 15(2).

12                  The Minister submits that the guiding principles for the Court when considering whether to grant leave have been articulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, at 348-349.  The Minister submits that, despite the discretion made available to the Court by O 52 r 15(2) to grant an extension of time to file and serve a notice of appeal, it should not do so, because the applicant had from the date of publication of Turner FM’s orders until 10 December 2007 to file and serve a notice of appeal and has failed to provide an acceptable explanation for his failure to do so.  The Minister also claims that the grounds listed in the draft notice of appeal failed to identify any error in the learned Federal Magistrate’s decision.

13                  Ground 1 in the draft notice of appeal, the Minister contends, makes no complaint and is rather a statement about the relevant legislation used by the Tribunal in arriving at its decision.  In relation to ground 2, the Minister pointed out that it had been contained in the applicant’s application for judicial review before Turner FM and had been addressed by the learned Magistrate at [7] of his reasons.  In doing so, according to the Minister, his Honour correctly held that “the findings of the Tribunal were properly open to it”.

14                  The Minister next noted that ground 3 in the draft notice of appeal had also been raised in the application for judicial review before Turner FM and been addressed by his Honour at [8] of his reasons when it was correctly found that;

‘The applicant did not establish his case to the satisfaction of the Tribunal.  It was properly open to the Tribunal on the material before it to not accept many of the applicant’s claims including that it did not accept that the applicant was a Falun Gong practitioner in China or in Australia.  As that was the only claimed ground of persecution, the Tribunal was justified in deciding to affirm the decision of the delegate.’

15                  The Minister, therefore, argues that the application should be dismissed with costs fixed pursuant to O 64 r 2(c) of the Rules of this Court. 

Disposition of the application

16                  Rules 15(1) and (2) of O 52 of the Federal Court Rules provide:

‘Time for filing and serving notice of appeal

(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 a 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.’

17                  The “special reasons” required to be shown under subrule (2) were considered by a Full Court in Jess v Scott (1986) 12 FCR 187, at 195.  The Court held that the expression describes 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.’

18                  Further, it stated, at 195;

‘What is needed to justify an extension is indicated in rule 15(2) by the words “for special reasons”.  It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of 21 days.  In that context, the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is twenty-one days.  But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case.  Such a ground is a special reason because it takes the case out of the ordinary.  We do not think the use of the expression “for special reasons” implies something narrower than this.’

19                  In Minister for Immigration and Multicultural Affairs v Kabail [1998] FCA 1320 Tamberlin J considered whether any “special reasons” had been shown and whether the Court ought to exercise its discretion and grant an extension.  In that case, his Honour was not persuaded that the explanation given for the delay was special as there was “nothing unusual or out of the ordinary”.  In QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9, a Full Court of this Court held at [7] that it was not appropriate to exercise its discretion to grant an extension of time as there had been no sufficient explanation provided for the whole of the delay in filing the notice of appeal.

20                  In Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 Mansfield J found it appropriate to exercise the discretion, noting at [14] of his reasons that the circumstances of the case, including the conduct of the applicant in question, amounted to “special reasons”. 

21                  Order 52 r 15(3) requires that:

‘An application for leave under subrule (2) must:

(a)       be in accordance with form 54A;  and

(b)       include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing;  and

(c)        be accompanied by an affidavit setting out:

(i)         the nature of the matter;   and

(ii)        the factual and legal issues in dispute;  and

(iii)       the reasons why leave should be given.’

22                  The applicant’s affidavit in support of the application does not provide any reasons why leave should be given and no explanation has been provided for the delay in filing the application for an extension of time within which to appeal.  The delay in the present case between the expiration of the time for appeal and the seeking of an extension of time was not inordinate, being only nine days.  Had the applicant provided an explanation of the circumstances which led to the delay it may have afforded special reasons for a favourable exercise of the Court’s discretion.  However, I have not been persuaded in this instance that any special reasons exists.  Nor have I been able to discern any arguable prospect of the appeal succeeding if an extension were granted.  Accordingly, there will be an order that the application for an extension of time to file and serve a notice of appeal be dismissed with costs fixed in the sum of $800.

Associate:

Dated:              8 May 2008