FEDERAL COURT OF AUSTRALIA

SZLPA v Minister for Immigration and Citizenship [2008] FCA 1095

Federal Court Rules 1979

Migration Act 1958 (Cth)

Jess v Scott (1986) 12 FCR 187

WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399

Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772

Tydeman v Deputy Registrar of Child Support Agency [1999] FCA 936

Atkinson v Commissioner of Taxation [2000] FCAFC 1621

Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627

Howard v Australian Electoral Commission [2000] FCA 1767

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

WACF v Minister for Immigration Multicultural and Indigenous Affairs [2003] FCA 1385

SZJDS v Minister for Immigration and Citizenship [2008] FCA 1093

SZLPA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 580 of 2008

REEVES J

24 JULY 2008

DARWIN

THE COURT ORDERS THAT:

1.      The time for the filing of a notice of appeal from the judgment of Federal Magistrate Scarlett dated 20 March 2008be extended to 28 April 2008.

2.        The draft notice of appeal annexed to the affidavit of the applicant sworn 24 April 2008 be treated as the notice of appeal filed in this proceeding.

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

REASONS FOR JUDGMENT

BACKGROUND

1                     This is an application for leave to file and serve a notice of appeal out of time.  The judgment the applicant wishes to appeal is that of Federal Magistrate Scarlett which was delivered on 20 March 2008.  The application before the Federal Magistrate had sought judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’). The Tribunal’s decision was delivered on 27 September 2007 and affirmed the decision of a delegate of the first respondent not to grant a protection visa to the applicant.

2                     This Court has power to grant leave to file and serve a notice of appeal beyond the usual twenty-one day time limit, under Order 52 rule 15 of the Federal Court Rules where ‘special reasons’ are demonstrated. I shall briefly outline the background to this application and then consider whether there are special reasons making it appropriate to grant leave.

3                     The applicant is a citizen of India who came to Australia on a cricket tour. The Federal Magistrate described the circumstances of his application for a protection visa as follows (at [4] of his Honour’s judgment):

the applicant arrived in Australia as part of a group from the Rajasthan Indoor Cricket Federation. The applicant and other members of his group met with a migration agent, a Mr Raymond Solaiman, who submitted a statement in respect of this applicant and 21 other people. That statement was received by the Department of Immigration and Citizenship on 30th April 2007. It accompanied an application for a protection visa submitted by the applicant.

4                     The statement referred to above was a generic statement submitted on behalf of the group of applicant cricketers on the day their visa expired and it alleged that “their brief claim is (that) they do not have civil & political freedom in India. They suffer from poverty and starvation and all these happened as a result of their particular social group “farmers from Rajasthan”.”

5                     The applicant consented to attending, and did attend, a hearing before the Tribunal (who sat in Sydney, with the interpreter) on 8 August 2007 by videoconference from a country town.  The Tribunal’s records show that the hearing lasted for fifty minutes, in which time the Tribunal considered the claim of poverty and the claim of restricted civil and political rights described above, as well as considering a third claim that was not in the applicant’s original application.

6                     Before the Tribunal, the applicant stated that although he was from a poor farming family, he did not claim to fear harm on this basis.  Rather he claimed that he had become involved in an inter-caste extramarital affair which had led to him being ostracised by his community, as well as problems for his family, so that his father had arranged for him to leave India.  The applicant stated that he would be unable to relocate within India as his community was scattered “everywhere”.

THE TRIBUNAL’S DECISION

7                     While the Tribunal was willing to accept that the applicant held a subjective fear of being (further) ostracised, it was not satisfied that this, without more, could meet the threshold of “serious harm” for Convention purposes.  The Tribunal reached a similar conclusion on the applicant’s claim to have been a victim of poverty in Rajasthan, as that situation did not appear to be primarily attributable to his membership of a particular social group; in that there was no evidence to suggest that farmers from Rajasthan were treated differently from other citizens of India.

8                      In relation to the third claim of a lack of civil and political freedoms, the Tribunal referred to country information on India’s democratic status and was not convinced that on return to India the applicant would be prevented from exercising his rights in any way that could amount to “serious harm”. The Tribunal determined that the applicant did not hold a well-founded fear of Convention-related persecution in his home country and affirmed the decision of the delegate.

THE FEDERAL MAGISTRATE’S DECISION

9                     The applicant then sought judicial review of the Tribunal’s decision in the Federal Magistrates Court by an application filed on 2 November 2007.  In his application, the applicant alleged that the Tribunal had failed to accord him natural justice, had denied him the proper application of law, and had failed to follow due procedure.  The applicant attended a hearing before Federal Magistrate Scarlett on  20 March 2008 and made oral submissions, stating that while he could not point to a particular breach, he did not get a proper decision from the Tribunal which had given him his decision ‘very soon’.

10                  The Federal Magistrate was unable to detect any jurisdictional error in the Tribunal’s decision.  His Honour held that the Tribunal had complied with the limited scheme of procedural fairness set out in Part 7 Division 4 of the Migration Act 1958 (Cth) (‘the Act’).  In relation to s 425 of the Act, his Honour held that the Tribunal had invited the applicant to a hearing, which he had attended by video conference with the assistance of an interpreter. In relation to s 424A of the Act, his Honour observed (at [34]) that it “was not a case where any claim was made of a breach of s 424A of the Migration Act and there does not appear to me to be any breach in any event”.

11                  His Honour was satisfied that the Tribunal had considered and rejected each of the claims made by the applicant in his protection visa application, as well as the subsidiary claim raised at hearing, and found himself unable “to identify any denial of natural justice. I am unable to identify any procedural breach by the Tribunal”. Having “looked at the decision carefully…[to see]...if there is any jurisdictional error, whether argued by the applicant or not”, his Honour dismissed the application for want of jurisdictional error.

THE PRESENT APPLICATION

12                  Under Order 52 rule 15 of the Federal Court Rules 1979 the applicant was required to file his notice of appeal on or before 10 April 2008. Instead, the applicant filed an application for leave to file and serve his notice of appeal out of time on 28 April 2008, accompanied by an affidavit annexing a draft notice of appeal.  In the affidavit, the applicant stated, among other things, that:

… after the judgment of the Federal Magistrate Court he was mentally distressed and he also received news from his home India that his father is very sick and has been hospitalized.  The applicant’s father was in the Hospital from 10^th of April to 22^nd of April 2008 and on 22^nd he was released from the hospital.  Till this period of time the applicant was so mentally distressed that he couldn’t take any steps regarding his case. 

13                  The proposed notice of appeal raises three grounds which can be summarised as allegations that the Federal Magistrate erred:

1-2.     In finding that the there had been no breach of s 424A of the Act; and

3.         In finding that the Tribunal had complied with its procedural fairness obligations.

14                  At the hearing of this application on 23 July 2008, the applicant appeared unrepresented but assisted by an interpreter.  Ms Buchanan appeared for the first respondent.  The applicant said that he could not “come to court” because his father was ill.  I took this to mean that he could not file his notice of appeal for that reason.  With the assistance of the interpreter, he told me he could not speak, read or understand English and he did not have any assistance from a lawyer to present his case. 

15                  Ms Buchanan relied on the outline of written submissions earlier filed by the first respondent.  She told me that she could not point to any prejudice the first respondent will suffer if leave is granted to the applicant.

16                  In the outline of written submissions, the first respondent submitted that the applicant’s appeal is bound to fail and the Court should therefore refuse to exercise its discretion to grant leave.  In relation to the three proposed grounds of appeal, the first respondent submitted that grounds one and two, alleging a breach of s 424A of the Act, is bound to fail because the Tribunal relied upon information supplied by the applicant and upon country information to reach its decision and these two categories of information are excluded from the provisions of s 424A(1) by s 424A(3) of the Act.  In relation to the third ground of appeal which alleges a breach of procedural fairness, the first respondent submitted that ground is bound to fail because s 422B of the Act exhaustively sets out the requirements of the natural justice hearing rule and the Federal Magistrate made no error in concluding that the Tribunal had met those requirements. 

CONSIDERATION

17                  In this case the applicant is 18 days out of time in filing his appeal.  In his affidavit in support of this application, he explains this delay by stating that he received news from India that his father was very sick and had been hospitalised; and he was mentally distressed and unable to take any steps regarding his case until his father was released from hospital on 22 April 2008.  At the hearing of this application before me, the applicant told me that he could not speak, read or understand English and that he had no assistance from a lawyer in presenting his case. 

18                  In Jess v Scott (1986) 12 FCR 187 at 195 (‘Jess’) the Full Court of this Court held that: “the expression ‘special reasons’ is intended to distinguish the case from the usual course” and “take the case out of the ordinary”: see also WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 (‘WAAD’)at [8].  In my opinion, the circumstances of the applicant’s father’s illness and his understandable distress, combined with his poor understanding of English and lack of legal representation, together amount to circumstances that set this matter apart from the usual course, or take it out of the ordinary, such that it amounts to ‘special reasons’ for the purposes of O 52 r 15(2).

19                  However, there is a number of decisions of this Court, including the Full Court, that require me to consider the applicant’s prospects of successfully prosecuting his appeal, before exercising my discretion to grant leave to file the appeal out of time: see Brehoi v Minister for Immigration and Multicultural Affairs [1999] FCA 772 at [12] per Whitlam, Moore and Katz JJ; Tydeman v Deputy Registrar of Child Support Agency [1999] FCA 936 at [5]per Sackville J; Atkinson v Commissioner of Taxation [2000] FCAFC 1621 at [12] per Hill J and at [14] per Dowsett J, and see Sackville J in the first instance [2000] FCA 998 at [3]; Ariaee v Minister for Immigration and Multicultural Affairs [2001] FCA 1627 at [12] per Mansfield J; Howard v Australian Electoral Commission [2000] FCA 1767 at [7] per Branson J; W105/99A v Minister for Immigration and Multicultural Affairs [2001] FCA 1786 at [13] per RD Nicholson J;and WACF v Minister for Immigration Multicultural and Indigenous Affairs [2003] FCA 1385 at [30] per Carr J and WAAD (above) at [9]. 

20                  In SZJDS v Minister for Immigration and Citizenship [2008] FCA 1093, I examined the authorities on the nature and extent of the consideration I should give to a putative appellant’s prospect of success in a proposed appeal and concluded that unless the proposed appeal is shown to have “no reasonable prospects in the sense that it is devoid of merits or will clearly fail, or is hopeless or unarguable, leave should be granted”: see SZJDS at [30].  I noted that the High Court held that this assessment should “not go into much detail on the merits and can only assess the merits in a fairly rough and ready way”: see SZJDS at [31].  I also concluded that the competing prejudice that will be suffered by each party is a relevant consideration, as is the question whether the respondent’s substantive rights will be affected by the grant of leave.

21                  As I have already noted (above), the applicant here is 18 days out of time in filing and serving his appeal.  In the circumstances, I consider this to be a relatively short period of time.  Further, the first respondent does not claim to suffer any prejudice if leave is granted and this is not a situation where the first respondent’s substantive rights will be affected by the grant of leave.  On the other hand, the applicant’s prejudice is obvious.  Moreover, it is potentially quite significant if, by losing his right of appeal, he thereby loses all prospects of obtaining a protection visa in this country. 

22                  Turning to the applicant’s prospects of success in the appeal, based on a rough and ready assessment of the Federal Magistrate’s review of the Tribunal’s decision, whilst I am inclined to accept that the applicant’s prospects are not strong, I do not consider I can conclude that the appeal will clearly fail, or is devoid of merit, hopeless or unarguable.  I do not consider it appropriate at this stage to go into more detail about the applicant’s prospects, other than to describe them in these very general terms.

23                  For these reasons, I propose to grant leave to the applicant to file his notice of appeal out of time.

Associate:

Dated:         24 July 2008