FEDERAL COURT OF AUSTRALIA

Sochorova v Minister for Immigration & Citizenship [2009] FCA 555

APPEALS – migration appeal – application for an extension of time in which to appeal – whether the proposed appeal would enjoy any prospect of success – held that the Federal Magistrate was correct in finding that the Federal Magistrates Court had no jurisdiction to entertain the applicant’s claims – held that the proposed appeal enjoys no prospect of success – application for extension of time dismissed 

Federal Court Rules – O 52 r 5(3), O 52 r 15

Gallo v Dawson(1990) 93 ALR 479 – applied

Mentyn v Westpac Banking Corporation [2004] FCAFC 149 – cited 

TEREZIE SOCHOROVA v MINISTER FOR IMMIGRATION AND CITIZENSHIP and MIGRATION REVIEW TRIBUNAL

QUD 338 of 2008

SPENDER  J

27 May 2009

BRISBANE

THE COURT ORDERS THAT:

1.                  The application for an extension of time in which to appeal is dismissed, with costs.

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 extension of time to file and serve a Notice of Appeal from a decision of Jarrett FM in proceedings BRG 514 of 2008, given on 9 September 2008 in Cairns.

2                     The application for an extension of time was filed by Terezie Sochorova (the applicant) on 20 October 2008, and indicates that “an extension of time is required because a notice of appeal was not filed and served within the time limited by Order 52, rule 15”.  The applicant indicated in her application for extension of time that she did not seek to have the application dealt with by oral hearing.

3                     The draft Notice of Appeal accompanying the application commenced:

The appellant appeals from the whole of the judgment of the Federal Magistrates Court given on 9 September 2008 in Cairns, dismissing on jurisdictional grounds the appellant’s application for redress for loss of .7 years lawful rights to Medicare and the aged pension, and for stress-related injury to health, caused directly by 7 years defective processing by immigration authorities of the appellant’s 1999 permanent visa application.

4                     The application for an extension of time was accompanied by an affidavit sworn by the applicant.  In that affidavit, having referred to the dismissal of “[her] application for remedy for 7 years deprivation of Medicare and aged pension rights, and for stress-related injury to health, caused directly by 7 years defective administration of [her] 1999 permanent residency visa application” the applicant claimed that the dismissal of her application “gave no reasons, but was purportedly made on the basis of lack of jurisdiction to hear the case prior to a determination on it by the Human Rights Commission”.

5                     The applicant says that she subsequently applied for a remedy to the Human Rights Commission, and her affidavit continues:

3.         On 15 September 2008 the commission also declined the application on grounds of lack of jurisdiction, stating that the Federal Magistrates Court was the appropriate authority to determine the matter, and that it cannot investigate decisions of judicial bodies or acts or practices done by government agencies in compliance with legislation.  In fact, my application for remedy is NOT against judicial bodies; it is for remedy from the Commonwealth government for loss and injury to health caused by acts or practices done by government agencies in BREACH of, not compliance with, legislation.

4.         Because of my application to the Human Rights Commission, and its dismissal, I have run out of time for filing with the Court and serving my appeal.

5.         I therefore seek leave for an extension of time to lodge my appeal to the Court.

6                     The affidavit exhibits the orders made by Jarrett FM on 9 September 2008.  Those orders were:

1.         That the application filed 1 August 2008 be dismissed.

2.         That the applicant pay the first respondent’s costs fixed in the sum of $1,000.00.

3.         That the applicant pay the second respondent’s costs fixed in the sum of $1,000.00.

7                     The affidavit also exhibited a reply from the Australian Human Rights Commission of 15 September 2008.  That letter said in part:

From the information you have provided, as stated, it does not appear to be something this Commission can assist with.  In relation to your matter against the Tribunal, it appears their decisions are protected under the doctrine of judicial immunity.  Furthermore, it appears the actions of DIAC in relation to your visa are actions done in direct compliance with the relevant immigration laws.  As a result, it appears that this Commission is unable to investigate such actions.

I note that your correspondence that you have made an application to the Federal Magistrates Court.  This is an appropriate avenue to challenge such a decision.

…

8                     The application by the applicant was filed on 1 August 2008, in the Federal Magistrates Court, and sought an order that the respondents show cause why a remedy should not be granted in exercise of the Court’s jurisdiction under s 476 of the Migration Act 1958 (Cth) in respect of the following decisions:

1.         Delegates of the Minister for Immigration and Citizenship and Authorised Officers of the Migration Review Tribunal severally and jointly have committed numerous breaches of law, erroneous decisions, delays and maladministration over a 7-year period in the processing of the Applicant’s 14 July 1999 permanent residency visa application.

2.         Names of all decision makers, dates of decisions, breaches of law and statutes breached by the Respondents in this matter are detailed in ANNEXURE A., pages 1 to 12, of this application.

3.         Following several Federal Court hearings of the case, the Respondents’ several decisions were overturned and the Applicant’s visa was finally granted on 23 March 2006.

9                     The grounds of the applicant’s application to the Federal Magistrates Court were expressed as:

1.         Delegates of the Respondents severally and jointly have deprived the Applicant of 7 years lawful Age Pension rights, totalling $93,173, as detailed in ANNEXURE B, page 13 of this application.

2.         Delegates of the Respondents severally and jointly have deprived the Applicant of 7 years public medical benefits, resulting in incurred medical costs totalling $19,175, as detailed in ANNEXURE B, pages 16 to 18, of this application.

3.         The second Respondent has failed to lawfully refund the applicant’s review fee of $1,400 following the Federal Court’s remittal of the case back to the first Respondent for determination according to law, as detailed in ANNEXURE B, page 14, of this application.

4.         Delegates of the Respondents severally and jointly have severely injured the Applicant’s health and existential well-being through unwarranted stress over a 7-year period, for which the Applicant claims damages of $337,500, as detailed in ANNEXURE B, page 15, of this application.

10                  The applicant sought the following orders:

1.         The Respondents jointly be ordered to compensate the Applicant $93,173 for 7 years loss of Age Pension entitlements.

2.         The Respondents jointly be ordered to compensate the Applicant $19,175 for medical costs incurred due to 7 years loss of public medical benefits.

3.         The second Respondent be ordered to refund the Applicant her review fee of $1,400 according to law.

4.         The Respondents jointly be ordered to pay damages to the Applicant of $337,500 for 7 years injury to the Applicant’s health and existential well being.

11                  The affidavit in support of the application to the Federal Magistrates Court said:

1.         I am a 74-year-old age dependent sister of Mr. Joseph Moder, with whom I live at 272 Lake Street Cairns QLD 4870.

2.         I have no assets or income, apart from a meagre pension of $56 per week from the Czech Republic, and am wholly dependent on my brother for my day-to-day living expenses, medical costs and psychological support.

3.         I have been severely aggrieved by 7 years of errors of law and gross maladministration by the Respondents in their processing of my 14 July 1999 permanent residency visa application.

4.         Following several successful Federal Court appeals by my brother on my behalf, the Full Federal Court finally ordered that my visa be granted on 23 March 2006.

5.         The prolonged maladministration of my visa application has deprived me of 7 years of lawful Age Pension entitlements and public medical insurance benefits.

…

7.         My brother has fully supported me for over ten years and, as I have not received any social welfare support from the government, my brother’s finances are now almost depleted.

8.         The 7-year visa delay has therefore seriously jeopardised my existential security.

…

10.       I therefore claim compensation for 7 years loss of Age Pension entitlements and public medical insurance benefits, and also damages for stress related injury to my health, from the Respondents jointly, as detailed in ANNEXURE B, pages 13 to 18.  I believe my claims for compensation and damages to be measured and just, in light of the circumstances of this case.

12                  Attached to that affidavit was a document styled “CHRONOLOGY OF VISA APPLICATION”.  That chronology recites the history of the applicant’s visa application.  It is relevant to note that on 14 July 1999 Mrs Sochorova lodged an application with the Cairns office of Department of Immigration and Multicultural and Indigenous Affairs (DIMIA or the Department) for a Special Category (Residence) (Class AO) Subclass 806 visa on family reunion grounds.  On 25 October 1999 an authorised officer of DIMIA in Cairns refused the grant of the visa.

13                  On 22 November 1999, the applicant lodged an application for review with the Migration Review Tribunal (the MRT), the second respondent.  On 21 August 2001, the MRT affirmed DIMIA’s decision of 25 October 1999.  The substantive written decision of the MRT was sent to the applicant’s original legal representative. The applicant received a copy of the decision of the MRT on 19 December 2001. 

14                  In January 2002, the applicant filed her appeal to the Federal Court from the decision of the MRT of 21 August 2001.  After interlocutory disputes, both in the Federal Court and in the Full Court of the Federal Court, in which the applicant was successful, Kiefel J, on 13 June 2003, ordered, “The decision of the Migration Review Tribunal of 21 August 2001 be set aside and the matter be remitted to the Tribunal differently constituted, for determination according to law”.  On 23 November 2004, the MRT heard the remitted application.

15                  On 20 December 2004, according to the applicant’s chronology:

… the MRT implemented the Federal Court judgment of 14 November 2003, corrected the error of the original 1999 visa decision, but remitted the case back to DIMIA for processing of the visa.

16                  The Department, in 2005, required the applicant to lodge further documents, including an Assurance of Support certificate from the applicant’s brother. 

17                  On 15 April 2005, the applicant again applied to the MRT for review of DIMIA’s 11 April 2005 decision not to grant the applicant’s visa and on 28 May 2005, the MRT advised the applicant:

Even though both the first and second DIMIA decisions relate to the same visa application that you lodged in 1999, the 11 April 2005 decision IS CONSIDERED to be a new decision as it has been made on a different basis to the first DIMIA decision.

18                  On 1 December 2005, the applicant’s chronology notes:

… it was agreed by consent of both parties that, since Mr. Moder no longer qualified as sponsor under new rules introduced 4 years after Mrs. Sochorova’s visa application, a new sponsorship would be provided by Mr. Moder’s son, and thereafter the visa would be granted to Mrs. Sochorova. 

19                  On that day, I also made orders relevant to the applicant’s requests concerning the application for fee waiver and review application, and on 11 January 2006 the MRT reviewed and approved the applicant’s fee waiver application.

20                  On 23 March 2006, an authorised officer of the Department advised that the applicant’s visa application had been approved.

21                  The MRT filed a response on 8 September 2008 to the applicant’s application in the Federal Magistrates Court, seeking that the application be dismissed, and that the applicant pay the second respondent’s costs.

22                  The grounds of opposition were as follows:

1.         The application is misconceived.  Section 435 of the Migration Act 1958 (Cth) (which refers to section 60 of the Administrative Appeals Tribunal Act 1975 (Cth)) provides that a member has the same protection and immunity as a Justice of the High Court.

2.         The application is misconceived as errors of law in decisions made by the second respondent have been rectified through the applicant’s appeals to the Federal Court.

3.         The application is misconceived as remedies sought by the applicant in proposed Orders 1, 2 and 4 are not available pursuant to section 476 of the Migration Act 1958 (Cth).

4.         The application is misconceived as the second respondent has not made a decision refusing to refund the review fee of $1,400 to the applicant.

5.         This application has purportedly been made pursuant to section 476 of the Migration Act 1958 (Cth).  Section 477 of that Act provides that any applications to the Court for remedies under section 476 must be made within 28 days of the actual notification of the decision.  Section 477(2) provides that the Court may extend that 28 day period by up to 56 days.  This application has been made more than 84 days after the applicant received actual notification of the second respondent’s decisions and is outside the period for making such applications prescribed by section 477(2) of the Act.

23                  On 14 November 2008, these proceedings were before the Federal Court for directions.  I gave directions for the filing of submissions by the parties, and for the matter then to be heard on the papers, once submissions had closed.  The direction that the matter would be heard on the papers was with the consent of the parties.

24                  Subsequent to those directions, the following submissions were filed:

            1.         Submissions of applicant filed 13 January 2009;

            2.         Supplementary submissions of applicant filed 21 January 2009;

            3.         Second respondent’s submissions dated 6 February 2009;

            4.         First respondent’s submissions dated 6 February 2009;

            5.         First respondent’s bundle of relevant documents filed 9 February 2009;

            6.         Reply to second respondent’s submissions filed 12 February 2009; and

            7.         Reply to first respondent’s submissions filed 13 February 2009.

25                  What is referred to in “1” above as “submissions of applicant filed 13 January 2009” was a document headed “Application for Extension of Time to File and Serve Notice of Appeal (Amended)”.  That document was filed and treated as the submissions of the applicant in respect of directions made by me on 14 November 2008.

26                  It is necessary to also have regard to the “supplementary submissions of applicant filed 21 January 2009”.  Those supplementary submissions acknowledge, “The appellant filed with the Court and served submissions on 13 January 2009”.

27                  The supplementary submissions refer to a communication received on 19 January 2009 from Centrelink regarding the entitlement of the applicant to an age pension.  That letter dated 16 January 2009 is a response to two letters of the applicant dated 2 December 2008 and 6 January 2009.  The letter from Centrelink says, in part:

In both letters, you have referred to Section 7(4B) of the Social Security Act 1991.  It details the day on which a permanent visa is granted to a person or a person becomes the holder of a permanent visa for the purposes of a ‘newly arrived resident’s waiting period’.  Section 7(4B) relates to persons serving a newly arrived residents waiting period. 

To be qualified for Age Pension, a person must have reached pension age and in this instance have 10 years ‘qualifying Australian residence’ as per Section 43(1) of the Social Security Act 1991.

An ‘Australian resident’ is a person who: (a) resides in Australia; and (b) is one of the following: (i) an Australian citizen; (ii) the holder of a permanent visa; (iii) a special category visa holder who is a protected SCV holder as per Section 7(2) of the Social Security Act 1991.

From the information provided in both letters, your permanent residence visa was granted on 23 March 2006.  The 10 years qualifying Australian residence will end on approximately 23 March 2016.

28                  The supplementary submissions enclosed the letter of the applicant dated 2 December 2008 which relevantly states:

I refer to your communication of 2 May 2008 wherein you advise that I am not entitled to the aged pension because I have not been an Australian resident long enough to meet the residency requirements for this payment.

The Department of Immigration refused my residency visa application on 25 October 1999.  The Migration Review Tribunal affirmed this decision on review 2 years later, on 21 August 2001.  On 13 June 2003 the Federal Court set the decision aside and remitted the case back to the MRT “for determination according to law”.  Following several further court hearings the visa was finally granted under court order on 23 March 2006 – nearly 7 years after the application.

Section 7 part (4B) item (b)(ii) of the Social Security Act 1991 provides that a resident is taken to be a holder of a permanent visa on the day the visa is refused in cases where the refusal decision is set aside and the visa is subsequently granted.

Please advise whether this provision applies to my case and whether I will in fact be eligible for the aged pension 10 years after my initial visa refusal, on 25 October 2009.

29                  Also attached to that supplementary submission is a letter dated 6 January 2009 from the applicant’s brother, Joseph Moder, to Centrelink which says, in part:

Mrs Sochorova holds a permanent residency visa granted on 23 March 2006.  The visa was applied for on 14 July 1999, was refused on 25 October 1999, was set aside and remitted on appeal by the Federal Court on 13 June 2003 for ‘determination according to law’, and was finally approved on 23 March 2006.

Under these circumstances Mrs Sochorova is entitled to the age pension 10 years after date of the visa refusal, not date of grant, as specified by Section 7 part (4B) item (b)(ii) of the Social Security Act 1991. 

This means that Mrs Sochorova will be entitled to the pension from 25 October 2009.

30                  It appears that there is a real controversy between the parties as to when the applicant becomes entitled to an aged pension.  It depends on whether s 7(4B) of the Social Security Act 1991 (Cth) (the Social Security Act) does or does not apply to the circumstances of the applicant. 

31                  In my opinion, it is not competent in these proceedings to determine that question.  These proceedings are an application for an extension of time to appeal from the orders made by Jarrett FM in proceeding BRG 514 of 2008 given on 9 September 2008 in Cairns.  They cannot therefore consider the correctness of any decision or direction which was made by Centrelink on or shortly before 16 January 2009 as to when the applicant would be entitled to an age pension.

32                  In the view of Centrelink, as expressed in the letter of 16 January 2009, the applicant becomes entitled to an age pension on 23 March 2016; the applicant and her brother contend that the applicant “will be entitled to the pension from 25 October 2009”.  Neither contention has any bearing on the claim for entitlement to social security benefits prior to her application in the Federal Magistrates Court on 1 August 2008.

33                  I have read the entirety of the material on this application for extension of time. 

34                  Whether the judgment of Jarrett FM of 9 September 2008 was interlocutory or final is not precisely clear. 

35                  In Mentyn v Westpac Banking Corporation [2004] FCAFC 149 at [3], Kiefel, Weinberg, and Stone JJ held that an order dismissing an application for want of jurisdiction was interlocutory in character, at least where it does not finally dispose of the parties’ rights. 

36                  Whether the judgment of Jarrett FM is final or interlocutory, the application for extension of time to file a Notice of Appeal, which was filed 20 October 2008, is either 34 days late if it was an interlocutory judgment, or 20 days late if it was a final judgment.  It is unnecessary to determine that question. 

the relevant test

37                  Order 52 r 5(3) of the Federal Court Rules provides:

(3)        Where an application is not filed within the time limited by subrule (2), an order shall be sought in the application that compliance with subrule (2) be dispensed with. 

38                  The discretion to extend time conferred by that rule is given for the sole purpose of enabling justice to be done between the parties. 

39                  In Gallo v Dawson (1990) 93 ALR 479, McHugh J was concerned with the application of O 60 r 6 of the High Court Rules in respect of the applicant’s application for an extension of time.  McHugh J said, at 480:

[Order 60 rule 6] provides that a court or a justice may enlarge the time appointed  by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act.  The grant of an extention of time under this rule is not automatic.  The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice.  The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262.  This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.

40                  There are two relevant matters concerning whether the Court should exercise its discretion to extend time.  The first is whether a sufficient explanation for the delay has been forthcoming; the second is whether the proposed appeal would enjoy any prospect of success, such that it ought be allowed to proceed.

41                  The applicant, on the first issue, says that the delay was occasioned by an application which she made to the Australian Human Rights Commission after the dismissal of a Federal Magistrates Court proceedings.  The evidence establishes that the Commission said on 17 October 2008 that it was not the appropriate body for reviewing the applicant’s case.  On 20 October 2008, the applicant filed her application for an extension of time in the Federal Court.  This application was filed promptly after the applicant was advised by the Australian Human Rights Commission determined that it was not the appropriate body to review the applicant’s case. 

42                  There is, in my view, a sufficient explanation for the delay, and the first requirement for the exercise of a discretion to extend time is, in my judgment, made out. 

43                  It is obvious that the “Notice of Appeal (Amended)” referred to in the submissions of the applicant filed 13 January 2009 relates to three separate matters: the judgment of the Federal Magistrates Court of 9 September 2008; the communication by the Australian Human Rights Commission to the applicant on 17 October 2008; and the communication by the Minister to the applicant on 11 December 2008.  It is said that each of these “decisions” constituted a dismissal of the applicant’s application for “redress for loss of .7 years lawful rights to Medicare and the aged pension, and for stress-related injury to health, caused directly by 7 years defective processing by immigration authorities of the appellant’s 1999 permanent visa application”.

44                  This document purports to appeal not only the judgment of Jarrett FM in Cairns of 9 September 2008, where his Honour dismissed the applicant’s application in the Federal Magistrates Court for want of jurisdiction, but also seeks to challenge what is said to be decisions by the Australian Human Rights Commission of 17 October 2008, and by the Minister on 11 December 2008. 

45                  It is not competent in these proceedings to entertain the second “two appeals”.  I should say, however, the appeals “in those two respects” seem misconceived and incompetent to achieve “redress for loss of lawful rights to Medicare and the aged pension, and for stress related injury to health”, as Ms Sochorova seeks.

46                  In my judgment, the judgment of Jarrett FM of 9 December 2008 is clearly correct.  The Court had no jurisdiction to entertain the applicant’s claims, for the reasons which the Federal Magistrate gave.

47                  It follows that the proposed appeal enjoys no prospect of success.  For this reason, the application for an extension of time to appeal the judgment of Jarrett FM of 9 December 2008 must be dismissed, with costs.

Associate:

Dated:         27 May 2009