FEDERAL COURT OF AUSTRALIA

SZGND v Minister for Immigration and Citizenship [2008] FCA 680

SZGND v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 7 of 2008

RYAN J

15 MAY 2008

SYDNEY

THE COURT ORDERS THAT:

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

2.         The applicant pay the first respondent’s costs fixed in the sum of $1,000.

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 orders of Raphael FM of 29 November 2007.  The application for leave to appeal has been filed with an affidavit sworn by the applicant in support of the application to which a draft notice appeal is attached.  The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) which had been handed down on 25 August 2007. 

2                          The applicant is a citizen of the People’s Republic of China and arrived in Australia on 14 November 2004.  On 25 November 2004 the applicant applied to the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) for a protection (class XA) visa.  On 31 December 2004 a delegate of the first respondent (“the Minister”) refused to grant the appellant a protection visa. 

Proceedings in the Tribunal

3                          On 2 February 2005 the appellant filed an application in the Tribunal for review of the decision of the delegate of the Minister.  The applicant claimed to have a well-founded fear of persecution in China by reason of his practice of Falun Gong.  The appellant claimed to have been arrested by the Public Security Bureau (“PSB”) and ordered not to practise Falun Gong again.

4                          On 11 May 2005 the Tribunal handed down its decision, affirming the decision of the delegate of the Minister to refuse to grant the applicant a protection visa.  The Tribunal did not accept the applicant’s claims.  It accepted that he might have had limited contact with Falun Gong practitioners, but otherwise regarded his claims as inconsistent and vague.  Pursuant to s 91R(3) of the Migration Act 1958 (Cth) (“the Act”) the Tribunal discounted evidence of the applicant’s involvement in Falun Gong demonstrations and other activities in Australia.  In addition, the Tribunal rejected the applicant’s contention that his interpreter had mistranslated parts of the applicant’s testimony and thereby adversely affected the quality of his evidence.

5                          On 14 June 2005 the applicant filed an application in the Federal Magistrates Court seeking review of the Tribunal’s decision.  On 2 February 2006, the Federal Magistrates Court made orders quashing the decision and remitting it to the Tribunal for reconsideration and determination in accordance with law.

6                          On 21 June 2006 the applicant attended a hearing before the Tribunal, differently constituted.  On 5 September 2006 the Tribunal handed down its decision, affirming the decision of the delegate to refuse the applicant a protection visa.

Proceedings in the Federal Magistrates Court

7                          On 5 October 2006 the applicant filed an application in the Federal Magistrates Court seeking judicial review of the Tribunal’s second decision. 

8                          Before Raphael FM, the applicant claimed that the Tribunal had failed to accord him procedural fairness, had contravened ss 424A and 425 of the Act, and had incorrectly interpreted and applied the law. 

9                          His Honour could find nothing to suggest that the Tribunal had been guilty of jurisdictional error.  It was noted that the applicant had not filed an amended application contending that jurisdictional error had been involved in the Tribunal’s consideration of the alleged mistranslations, and his Honour did not further examine that point.  There was no perceptible contravention of s 424A or s 425, and no particulars had been filed to substantiate that allegation or the argument that the Tribunal had misconstrued the law.  The application was, accordingly, dismissed.

Proceedings before this Court

10                        On 3 January 2008 the applicant filed an application pursuant to O 52 r 15 of the Rules of this Court for an extension of time in which to file and serve a notice of appeal from the orders of the Federal Magistrates Court.  The application was filed with a draft notice of appeal, which listed the grounds of appeal as follows;

‘1.        I am a citizen of China.  If I back to my country, I will be risk of suffering persecution; within the meaning of the 1951 Convention relating to the status of Refugee.

2.         Member of the Tribunal failed to understand my claims and failed to consider relevant matters.

3.         The Tribunal failed to comply with its obligations under s 424A of the Migration Act 1958.’

The orders sought in the draft notice of appeal are:

‘1.        a writ of certiorari quashing the decision of the Refugee Review Tribunal on 19 April 2005.

2.         The Tribunal should reconsider the matter according to law by a differently constituted Tribunal.

3.         Such other order as the Court sees fit.

4.         Cost.’

11                        In support of his application, the applicant filed an affidavit sworn 31 December 2007, deposing to the following;

‘1.        I was born on 27 February 1966 in HeiLongjiang Province PR China.  I applied for a protection visa to avoid a risk of being arrested since I com to Australia.  On 14 Nov 2004 I arrived in Australia;  On 13 December 2004 I lodged an application for a protection visa with the Department of Immigration.  On 31 December 2004 a delegate of the Minister for Immigration refused to grant a protection visa and 2 Feb 2005 I applied for a review of the decision.  On 19 April 2005 the Tribunal affirms the decision not to grant a protection visa.

I am an innocent Falun Gong practitioner.  I have been exercising Falun Gong for a long time because I have a very poor health.  In the mid of 1999, the government recognised that Falun Gong as illegal organisation.  One morning while we were practicing place to arrest us.  I escaped and under my friends help.  If I return to China I don’t avoid a risk of being arrested.

2.         Member of Refugee Review Tribunal failed to understand our claims and failed to consider relevant matters.

3.         The respondent refused to grant our protection visa without proper grounds and proper investigation.

4.         The Tribunal failed to comply with its obligations under s 424A of the Migration Act 1958.’

12                        On 11 February 2008 Deputy District Registrar Farrell made a direction that;

‘5.        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 any utility in granting the extension of time and/or leave to application.’

13                        The applicant has not filed any written submissions, and has failed to comply with that order of the Deputy District Registrar.  No explanation has been given for that omission.  The applicant also declined today to advance any oral submissions in support of his application saying through an interpreter that “the Court does not believe anything I say”.

14                        The Minister submits that the applicant was required by the Rules of this Court to file and serve a notice of appeal within 21 days from the date of the orders of Raphael FM, being on or before 20 December 2007.  The present application was therefore filed 14 days outside the time prescribed by the Rules for the filing of a notice of appeal.

15                        The Minister accepts that O 52 r 15(2) of the Rules of this Court provides the Court with a discretion to grant leave to file and serve a notice of appeal out of time if “special reasons” exist.  However, the Minister contends that O 52 r 15 imposes a requirement that “special reasons” must exist;  see Jess v Scott (1986) 12 FCR 187, at 195-196.  The Minister further submits that, even if “special reasons” do exist, the Court retains a discretion to refuse to grant an extension of time.

16                        Counsel for the Minister next contends that the question of whether “special reasons” exist is a question of fact and degree, to be measured on a case by case basis; see Minister for Immigration and Multicultural Affairs v Kabail [1998] 1320 FCA, per Tamberlin J.  The Minister submits that no special reasons exist in this case, and that the applicant has failed to assert any basis that could satisfy the requirement for special reasons.  Nor, according to the Minister, has the applicant advanced an explanation, or any evidence of a reason for his failure to file a notice of appeal within the time prescribed by the Rules of this Court.

17                        In the alternative, it was argued on behalf of the Minister that, even if this Court were to find that special reasons have been shown, the application ought to be refused on discretionary grounds after taking into account the importance of the question sought to be raised by the proposed appeal, the bona fides of the proposed appeal, and the prima facie strength of the proposed grounds of appeal;  see Howard v Australian Electoral Commission [2000] FCA 1767, per Branson J, at [7].  The Minister submits that the proposed appeal must have sufficient prospect of success to justify it proceeding;  see W105/99A v Minister for Immigration and Multicultural Affairs [2003] FCA 1385, per Carr J, at [30].  In the same context it is contended that the draft notice of appeal does not identify any error in his Honour’s decision below, and seeks only review of the merits of the decision of the Tribunal, which is impermissible;  see Sathiyanathan v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 210, at [10].

18                        The Minister therefore submits that, as no error has been identified in the reasons of the learned Federal Magistrate, the application should be refused and the applicant be ordered to pay the first respondent’s costs in a fixed sum.

Disposition of the application.

19                        Order 52, r 15(1) and (2) 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 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.’

The “special reasons” required by 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.’

20                        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 twenty-one 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 rules 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.’

21                        In Minister for Immigration and Multicultural Affairs v Kabail (supra), 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.”

22                        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 no sufficient explanation had been provided for the whole of the delay in filing the notice of appeal.  In Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 Mansfield J considered 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.”

23                        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.’

24                        The applicant’s affidavit accompanying the present application fails to set out any reasons why leave should be given and no explanation has been provided for the delay in filing the application for leave to appeal.  I am therefore not persuaded that there are any special reasons why I should exercise the Court’s discretion and grant an extension of time in which a notice of appeal may be filed.  Nor have I been able to discern any reasonably arguable prospects of the appeal succeeding if leave were granted.  Accordingly, the application for extension of time to file and serve a notice of appeal must be dismissed with costs.

25                        In light of the affidavit of Bernadette Marie Rayment sworn 14 May 2008 and having regard to the order for costs made in the Federal Magistrates Court, which were fixed in the sum of $4000, I shall fix in the sum of $1,000 the costs which I have indicated will be ordered.

Associate:

Dated:         15 May 2008