FEDERAL COURT OF AUSTRALIA

SZKPX v Minister for Immigration and Citizenship [2008] FCA 1881

MIGRATION – application for leave to extend time to file notice of appeal – whether there are special reasons to grant leave – lengthy delay between date of judgment and filing notice of appeal – merits of substantial application are weak – appellant’s submissions seek impermissible merits review

Held: application dismissed

Federal Court Rules 

Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344

Jess v Scott (1986) 12 FCR 187

SZKPX v Minister for Immigration & Anor [2007] FMCA 1597

SZKPX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 1747 of 2008

JAGOT J

12 DECEMBER 2008

SYDNEY

THE COURT ORDERS THAT:

1.                  The application for leave to extend the time to file and serve a notice of appeal is refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

REASONS FOR JUDGMENT

1                     This is an application for leave to extend time to file and serve a notice of appeal against a judgment of the Federal Magistrates Court of 10 September 2007 (SZKPX v Minister for Immigration & Anor [2007] FMCA 1597).

2                     Order 52 rule 15(1)(a) of the Federal Court Rules provides that a notice of appeal is to be filed within 21 days of the date on which the judgment appealed from was pronounced.  However, under order 52 rule 15(2) the Court for special reasons may at any time give leave to file and serve a notice of appeal. 

3                     The applicant filed the application for an extension of time on 6 November 2008.  The application is accompanied by an affidavit stating that the applicant was told to engage a solicitor after the unfavourable decision of the Federal Magistrates Court.  The solicitors charged money and the applicant could not afford the Court fees.  When taken into detention the applicant was told that an application could be made for an exemption from Court fees. 

4                     The applicant’s draft notice of appeal claims that the applicant’s migration agent misled the applicant so that he did not attend the hearing and present evidence.  The primary judge noted that the applicant had personally consented to the hearing taking place in his absence with the consequence that no jurisdictional error could be found. 

5                     The Full Court of the Federal Court explained the meaning of “special reasons” in Jess v Scott (1986) 12 FCR 187 at 195 as follows:

...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.

6                     Relevant factors have been identified as including the length and explanation for the delay, other actions taken by the applicant contesting the decision, any prejudice to the respondent, any public interest considerations or impacts on third parties, the merits of the substantial application, and considerations of fairness as between the applicants and other persons otherwise in a like position (Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348 – 349).

7                     In this case the delay between the Federal Magistrates Court’s decision and the filing of the application for an extension of time is relatively lengthy.  The explanation for the delay is not particularly persuasive.  The merits of the substantial application are weak.  The primary judge considered the applicant’s arguments in detail and was unable to identify any jurisdictional error.  The draft notice of appeal, in substance, repeats the same grounds as considered by the primary judge. 

8                     In oral submissions the appellant stressed that his claims (specifically relating to his practice of Falun Gong in China, his consequential imprisonment and injuries he sustained in prison) were genuine and able to be supported by documents.  Further, that while in Australia he had continued to carry out activities and demonstrations for Falun Gong.  As such, he would be persecuted if he returned to China. 

9                     As the first respondent submitted, these submissions concern the merits of the appellant’s case and this Court has no jurisdiction to engage in merits review.  Further, the information about the appellant’s activities in connection with Falun Gong in Australia was not before the Tribunal.  As such that new information cannot found any jurisdictional error in respect of the decision which is currently before the Court.  Whether that information might be relevant to some other application is also not a matter which can be dealt with as part of the current matter.

10                  For these reasons leave should not be granted to file and serve a notice of appeal against the Federal Magistrate Court’s decision of 10 September 2007.

Associate:

Dated:         12 December 2008