FEDERAL COURT OF AUSTRALIA

SZLSI v Minister for Immigration & Citizenship [2008] FCA 1052

MIGRATION – interlocutory decision of Federal Magistrates Court – Application filed out of time – no explanation for delay – extension of time refused – leave to appeal – substantially new arguments sought to be raised – draft grounds without substance

Federal Court of Australia Act 1976 (Cth), s 24(1A)

Federal Court Rules 1979 (Cth), O 52, r 15(2)

Federal Magistrates Court Rules 2001 (Cth), r 44.12(1)(a)

Applicant M171/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 220 followed

Australian Securities & Investment Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123 considered

C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430, 94 FCR 366 cited

Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, 104 ALR 621 followed

Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, 197 ALR 389 cited

Gallo v Dawson (1990) 64 ALJR 458, 93 ALR 479 followed

Harrington v Rich [2008] FCAFC 61 considered

Jess v Scott (1986) 12 FCR 187, 70 ALR 185 followed

Lomas v Winton Shire Council [2002] FCAFC 413 followed

Metwally v University of Wollongong (1985) 60 ALR 68 followed

Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38 followed

Plaintiff S 157/2002 v Commonwealth [2003] HCA 2, 211 CLR 476 followed

SZDGN v Minister for Immigration & Multicultural & indigenous Affairs [2004] FCA 1543 followed

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

SZLRL v Minister for Immigration & Citizenship [2008] FCA 716 followed

SZLSI v Minister for Immigration & Citizenship [2008] FMCA 418 cited

Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539 considered

V v Minister for Immigration and Multicultural Affairs [1999] FCA 428, 92 FCR 355 distinguished

Beaton-Wells C, ‘Judicial Review of Migration Decisions: Life After S157’ (2005) 33 FL Rev 141

O’Donnell B, ‘Jurisdictional Error, Invalidity and the Role of Injunction in s 75(v) of the Australian Constitution’ (2007) 28 Aust Bar Rev 291 

SZLSI AND ANOR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 597 OF 2008

FLICK J

15 JULY 2008

SYDNEY

THE ORDERS OF THE COURT ARE:

1.             The applicationto extend time within which to seek leave to appeal is refused.

2.             The proceeding is dismissed.

3.             The Applicants are 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: SZLSI v Minister for Immigration & Citizenship [2008] FMCA 418.

2                     The Applicants, who are husband and wife, arrived from India in May 2007. They applied to the Department of Immigration and Citizenship for Protection (Class XA) Visas in June 2007 and those applications were refused in July 2007. The Refugee Review Tribunal affirmed the decision to refuse the visas by its decision in October 2007.

3                     The First Applicant appeared before the Court this morning unrepresented, although he did have the benefit of an interpreter. He also appeared on behalf of his wife.

4                     In its reasons for decision published on 26 March 2008, the Federal Magistrates Court dismissed the application made to that Court pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). That Rule relevantly 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…

…

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

5                     The Application for Leave to Appeal was filed in this Court on 28 April 2008. That Application also sought an order dispensing with compliance with O 52, r 5(2) of the Federal Court Rules.

6                     Leave to appeal is required because the decision of the Federal Magistrates Court is interlocutory: Federal Court of Australia Act 1976 (Cth), s 24(1A). An extension of time is also required. Although there is no rule providing for the time within which an appeal is to be brought in respect to an interlocutory decision of the Federal Magistrates Court, there is an implied time limit of 21 days: SZDGN v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1543 at [9] per Lindgren J. See also: Applicant M171/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 220 at [32] per Moore J; SZLRL v Minister for Immigration & Citizenship [2008] FCA 716 at [6]. The Application as filed in this Court was outside the period of 21 days.

7                     It is not considered that any extension of time should be granted and, even if an extension of time were to be granted, leave to appeal would have been refused.

8                     An order extending time is “not automatic” and a “discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties”: Gallo v Dawson (1990) 64 ALJR 458, 93 ALR 479 at 480 per McHugh J. It has further been said that “[s]ome good reason should … be shown to dispense with the requirement to file an application for leave to appeal within 21 days”: Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38 at [23] per Moore, Bennett and Buchanan JJ.

9                     In the present proceeding no explanation was provided as to why there was non-compliance with the required 21 day period, other than the statement this morning by the First Applicant that he was not aware that there was any time limit. In such circumstances, no extension of time is warranted. The discretion to extend time within which to appeal from an interlocutory decision is that conferred by O 52, r 15(2) of the Federal Court Rules and not O 52, r 5(2). And that discretion, as r 15(2) expressly provides, may be exercised “for special reasons”. In Jess v Scott (1986) 12 FCR 187 at 195, 70 ALR 185 at 193, Lockhart, Sheppard and Burchett JJ helpfully observed in respect to this provision:

What is needed to justify an extension of time is indicated in r 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 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.

…

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.

See also: SZLAF v Minister for Immigration & Citizenship [2008] FCA 219 at [11].

10                  In the present proceeding, the extension of time which is sought may be for a limited period of time, but there is no “special reason” to justify an extension being granted. Irrespective of the absence of any explanation for non-compliance, it is further considered that the Draft Notice of Appeal raises no issue which should now be entertained. Indeed, the attempt being made in the Draft Notice of Appeal to raise issues substantially different to those resolved by the Federal Magistrates Court only provides a reason to refuse an extension of time rather than granting one.

11                  Even had an extension of time been granted, leave to appeal would have been refused.

12                  Section 24(1A) of the 1976 Act confers on the Court “an unfettered discretion” in “unqualified terms”: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399; 104 ALR 621 at 622 per Sheppard, Burchett and Heerey JJ. The requirement for leave to appeal is thus not a requirement that a particular test be satisfied: Lomas v Winton Shire Council [2002] FCAFC 413 at [15] per Cooper, Kiefel and Emmett JJ. Relevant to the exercise of the discretion, however, is a consideration of:

(a)     whether in all the circumstances the decision of the primary judge is attended by sufficient doubt to warrant it being reconsidered; and

(b)     whether substantial injustice would result if leave were refused, supposing that decision were wrong.

See: Harrington v Rich [2008] FCAFC 61 at [25] per Sackville, Emmett and Jacobson JJ; Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539 at 542 per Lockhart, Beaumont and Hill JJ. No question sought to be raised in the present appeal would raise any question of importance beyond the concerns of the parties to the present proceeding. Contrast: Australian Securities & Investment Commission v P Dawson Nominees Pty Ltd [2008] FCAFC 123 at [10].

13                  In the present proceeding it is not considered that the decision of the Federal Magistrates Court is attended by sufficient doubt to warrant it being reconsidered. The Refugee Review Tribunal concluded that the factual account given by the Applicants was “lacking in detail and implausible”. Before the Federal Magistrates Court two principal arguments were advanced, namely:

(a)     that there had been a denial of natural justice; and

(b)     that there had been non-compliance with s 425 of the Migration Act 1958 (Cth).

It would also appear that the Applicants contended:

(c)     that “[t]he Tribunal erred in law amounting to jurisdictional error in determining that relocation is a reasonable and feasible option for the applicant”; and

(d)     that there had been a “[c]onstructive failure of jurisdiction”.

All arguments were rejected.

14                  The Draft Notice of Appeal as filed in this Court set forth as proposed Grounds of Appeal:

1.       a failure “to consider political opinion of the applicant as per Article 1 (a) of the Refugees Convention”;

2.       a failure “to assess the claims of the applicant based on Particular social groups pursuant to Art1 of the Convention”;

3.       the making of findings by the Tribunal “in the complete absence of evidence”;

4.       the failure of the Tribunal to “apply ‘reasonable internal relocation test’ in accordance of the law” when finding that “the applicant could relocate in other places in India”; and

5.       that the “Federal Magistrate erred in law as he did not go into the merit of the case”.

15                  If the final proposed Ground is presently left to one side, other than the fourth proposed Ground, these were not arguments advanced before the Federal Magistrates Court. As was concluded in Metwally v University of Wollongong (1985) 60 ALR 68 at 71 per Gibbs CJ, Mason, Wilson, Brennan, Deane and Dawson JJ:

It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

No explanation was forthcoming as to why those arguments were not advanced before the Federal Magistrates Court.

16                  The course apparently now being pursued by the Applicants in seeking leave to appeal is the course of substantially abandoning the arguments that they unsuccessfully advanced before the Federal Magistrates Court and, without explanation, to now seek to advance completely new arguments on appeal. The discretion conferred by s 24(1A) to grant leave to appeal may be accepted as being conferred in “unqualified terms”. But however wide that discretion may be, it would be a surprising exercise of that discretion should leave be granted in such circumstances.

17                  The arguments sought to be raised by the Draft Notice of Appeal are, in any event, each without substance. There is no reason why leave to appeal could not be confined to a particular proposed ground — as opposed to leave being granted in respect to the Draft Notice of Appeal in its entirety. But none of the grounds in the Draft Notice of Appeal warrant leave being granted.

18                  The “Particulars” provided in relation to the first proposed Ground are but an impermissible invitation to revisit the merits of the decision as made by the Tribunal. Those “Particulars”thus state that “[t]he Tribunal failed to appreciate” the matters thereafter set forth. The reliance sought to be placed by the Applicants upon V v Minister for Immigration and Multicultural Affairs [1999] FCA 428, 92 FCR 355 is misplaced. Views were there expressed as to what constituted “political opinion” for the purposes of art 1A(2) of the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951. And the obligation of the Tribunal to make findings on material questions of fact imposed by s 430(1) of the 1958 Act was also recounted. But, in the present proceeding, there could not be said to be any non-compliance by the Tribunal with s 430(1). It made its findings on those matters material to its decision.

19                  Parts of the first proposed Ground of Appeal are, in any event, in direct conflict with the manner in which the claim was advanced before the Refugee Review Tribunal and the evidence then given. The first proposed Ground thus states in part as follows:

… During the hearing the applicant stated that when his former business partner wanted to overtake his business from him as he was a Hindu, he complained to the police and the police did not protect him and asked for bribes.

But, before the Tribunal, his evidence was that he did not complain to the police. The Tribunal thus recounted as follows the evidence then given:

… Asked why he didn’t report the threats and beating to the police, the applicant claimed that the police wouldn’t do anything unless they were bribed. The Tribunal put to the applicant that it was not possible to know for sure that the police would not act on his behalf without a bribe unless he actually reported the incidents to them. The applicant claimed that he had experience with the traffic police and knows that they ask for money for any reason and will beat you if you do not pay them.

Not only is there a divergence between the manner in which the proceeding was conducted before the Federal Magistrates Court and this Court, there is also a divergence between the factual account now sought to be advanced for determination by this Court and the factual account advanced before the Tribunal. In the absence of an explanation, leave to appeal to raise such a ground should not be granted.

20                  The same conclusion may be expressed in respect to the second proposed Ground of Appeal.The reliance in that ground upon Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26, 197 ALR 389 and C v Minister for Immigration and Multicultural Affairs [1999] FCA 1430, 94 FCR 366 is again equally misplaced. This proposed Ground also suffers from a further difficulty — it purports to set forth as “Particulars” matters of evidence. It is thus stated that (without alteration):

… it is beyond any doubt that the authority knew about the applicant’s complains. They knew that he was being targeted for money in his business.

But it was submitted on behalf of the Respondent Minister that there was no such evidence before the Tribunal. The Tribunal’s exposition in its reasons for decision of the “Claims and Evidence” does not refer to any such evidence. This would be a further reason for not granting leave to appeal — at least in respect to this proposed Ground.

21                  The third proposed Ground of Appeal is also without substance. The findings as made by the Tribunal were all open to it.

22                  The proposed fourth Ground is again without substance. Relocation within India was not a basis upon which the Tribunal proceeded. And, as noted by the Federal Magistrates Court:

[14] The particulars set out under ground 2 are taken from a precedent with no clear application to the present case, and they also garble several contentions which are difficult to understand as a coherent argument. The Tribunal, in fact, did not address issues of relocation in the present case, and was not required to do so on the path of reasoning it followed.

23                  The final proposed Ground proceeds from a misconception as to the role of the Federal Magistrates Court. The task of that Court was to determine if the Tribunal had committed jurisdictional error (Migration Act 1958 (Cth), s 474; Plaintiff S 157/2002 v Commonwealth [2003] HCA 2, 211 CLR 476). Its task was not to “go into the merit of the case”. See: O’Donnell B, ‘Jurisdictional Error, Invalidity and the Role of Injunction in s 75(v) of the Australian Constitution’ (2007) 28 Aust Bar Rev 291; Beaton-Wells C, ‘Judicial Review of Migration Decisions: Life After S157’ (2005) 33 FL Rev 141.

24                  It is thus considered that an extension of time should be refused and the proceeding should be dismissed. The Applicants should pay the costs of the First Respondent.

Orders

25                  The orders of the Court are:

1.             The application to extend time within which to seek leave to appeal is refused.

2.             The proceeding is dismissed.

3.             The Applicants are to pay the costs of the First Respondent.

Associate:

Dated:         15 July 2008