FEDERAL COURT OF AUSTRALIA

SZNFR v Minister for Immigration and Citizenship [2009] FCA 851

MIGRATION — interlocutory decision of Federal Magistrate — application filed outside 21 day period — application 7 days out of time — application for extension of time and for leave to appeal — no explanation provided for non-compliance — application for extension of time refused — factors relevant to exercise of discretion — to do justice between the parties

Held: Application dismissed

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

Federal Court Rules 1979 (Cth) O 52 rr 4, 5, O 62 r 4(2)(c)

Federal Magistrates Court Rules 2001 (Cth) r 44.12

Croker v Commonwealth of Australia [2007] FCA 1593, cited

Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397, applied

Lawrance v The Commonwealth of Australia [2007] FCA 1524, cited

MZXME v Minister for Immigration and Citizenship [2007] FCA 767, cited

Nguyen v Pascoe [2006] FCA 719, cited

Sochorova v Minister for Immigration and Citizenship [2009] FCA 555, cited

SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543, cited

SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725, applied

SZMTC v Minister for Immigration and Citizenship [2009] FCA 162, applied

SZNFR v Minister for Immigration and Citizenship [2009] FMCA 408, considered

SZNFR v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND ANOR

NSD 470 of 2009

FLICK J

7 august 2009

SYDNEY

THE COURT ORDERS THAT:

1.                  The Application for Leave to Appeal as filed on 20 May 2009 is dismissed.

2.                  The Applicant is to pay the First Respondent’s costs.

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

REASONS FOR JUDGMENT

1                     Presently before the Court is an Application for Leave to Appeal from a decision of the Federal Magistrates Court: SZNFR v Minister for Immigration and Citizenship [2009] FMCA 408. That Application seeks both leave to appeal and “an order that compliance with Order 52, subrule 5(2) be dispensed with”.

2                     Leave to appeal is required because the Federal Magistrate dismissed the application before that Court pursuant to Rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth). Rule 44.12 provides as follow:

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; or

(b)     if it is satisfied that the application has raised an arguable case for the relief claimed —       adjourn the proceeding and order a respondent to show cause at a final hearing why an          order for the relief claimed should not be made on such of the grounds mentioned in the       application as are specified by the Court; or

(c)     without making an order under paragraph (b), make final orders in relation to the claims       for relief and grounds mentioned in the application.

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

The dismissal of an application pursuant to Rule 44.12(1)(a) is, accordingly, an interlocutory decision and s 24(1A) of the Federal Court of Australia Act 1976 (Cth) (the 1976 Act) imposes the requirement to obtain leave before any appeal may be entertained.

3                     In addition, and as the Application itself recognises, the Application as filed in this Court was filed outside the time prescribed by O 52 r 5(2) of the Federal Court Rules 1979 (Cth).Rule 5 provides as follows:

Time for filing application

(1)     This rule applies only to applications where an appeal from the judgment lies to the Court            only with leave.

(2)     An application shall be filed within 21 days after:

(a)     the judgment was pronounced; or

(b)     a later date fixed for that purpose by the court or judge who pronounced the decision.

(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.

4                     In the present proceeding, the judgment of the Federal Magistrate was pronounced on 22 April 2009; the Application for Leave to Appeal was filed in this Court on 20 May 2009. If the Application for Leave to Appeal is to be entertained, an extension of time is thus required for a period of seven days.

5                     Order 52 r 4 should also be noted. That rule provides as follows:

Form of application — Form 54

(1)     An application shall be made in or substantially in the form numbered 54 in Schedule 1.

(2)     An application shall be accompanied by an affidavit showing:

(a)     the nature of the case;

(b)     the questions involved; and

(c)     the reasons why leave should be given.

(3)     An application must include a statement indicating whether the applicant wishes to have the      application dealt with without an oral hearing.

6                     In support of the Application the Applicant has filed an Affidavit which annexes a Draft Notice of Appeal. But that Affidavit fails to comply with r 4(2). It is in inadmissible form but, more relevantly, it is more in the nature of a submission and challenges the factual conclusions made by the Refugee Review Tribunal which affirmed the decision not to grant a protection visa. But such deficiencies may presently be left to one side. Non-compliance with r 4(2) should not, as in other proceedings where an applicant has been unrepresented (e.g. Lawrance v The Commonwealth of Australia [2007] FCA 1524 at [26]; Croker v Commonwealth of Australia [2007] FCA 1593at [6]), of itself necessarily impede a proper consideration of such merits as an application may present.

7                     The Applicant in the present proceeding appeared before this Court this morning unrepresented — albeit with the benefit of an interpreter.

8                     It is not considered that any order should be made pursuant to O 52 r 5(3) that compliance with O 52 r 5(2) be dispensed with.

9                     Notwithstanding the fact that the present Applicant is not legally represented, some assistance has obviously been obtained in respect to the drafting of the Application for Leave to Appeal.The Applicant has obviously received advice from some source that he requires leave and an order dispensing with compliance with O 52 r 5(2). Some assistance may also have been provided in respect to the drafting of the proposed Notice of Appeal. But there the assistance seems to have ended.

10                  No explanation is provided in the Applicant’s Affidavit as to why any application for leave to appeal was not filed within the time prescribed. In such circumstances a proceeding may be dismissed: e.g. MZXME v Minister for Immigration and Citizenship [2007] FCA 767.

11                  Before any order is made pursuant to r 5(3) there must be a rational basis upon which any such order may be made.

12                  Notwithstanding the difference in language as between O 52 r 5(3) and O 52 r 15(2), namely the constraint in r 15(2) that the Court may give leave to file and serve a notice of appeal “at any time” where there are “special reasons”, principles relevant to the exercise of that discretion have been applied when considering r 5(3): SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725. Cowdroy J there stated:

[21] The Court observes that in considering whether to grant an extension of time to file a notice of appeal under O 52 r 15(2) of the Rules, the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348–349. There appears to be no valid reason why such considerations should not also apply to an application seeking an order of the Court that dispenses with the 21 day time limit prescribed by O 52 r 5(2) of the Rules.

Compliance with O 52 r 5(2) was there dispensed with in circumstances where the application for leave to appeal was filed out of time by ten days. See also: Nguyen v Pascoe [2006] FCA 719 at [41].

13                  Expressed in perhaps slightly different language, in Sochorova v Minister for Immigration and Citizenship [2009] FCA 555, Spender J set forth the terms of O 52 r 5(3) and expressed “the relevant test” as follows:

THE RELEVANT TEST

…

[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 extension 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.

In SZMTC v Minister for Immigration and Citizenship [2009] FCA 162 at [5] Buchanan J referred to the language of “special reasons” in O 52 r 15 when considering an application for an extension of time in relation to an “ordinary appeal” and observed that “no lesser test should be employed when considering an application for an extension of time in which to seek leave to appeal”. Concurrence is expressed with the observations of both Spender J and Buchanan J.

14                  Normally some explanation for non-compliance should thus be forthcoming from an applicant — the greater the delay, the more compelling may be the explanation required for non-compliance; the shorter the delay, the less may be any prejudice to a respondent and the less fulsome may be the explanation advanced. But, even where a delay is short, some explanation should normally be provided. Here no explanation was provided in the Affidavit filed in support of the Application. The Applicant this morning, however, has stated that he thought the time permitted was either 25 days or 30 days and not 21 days. Even had the time prescribed been 25 days, the Application would remain out of time. The Respondent Minister, however, correctly accepts that some explanation has now been provided, albeit an inadequate explanation. No prejudice is claimed by the Minister if an extension of time were to be granted.

15                  Even if it be accepted that an adequate explanation for the delay has been provided, it is considered that the only rational basis upon which any order could potentially be made in the present proceeding pursuant to r 5(3) must be found — if at all — in the reasons for decision of the Federal Magistrate and/or the proposed Notice of Appeal. If there emerges from the reasons for decision of the Federal Magistrate a basis upon which an appeal may have some prospects of success or where there is sufficient doubt as to the correctness of that decision, it is not considered that any failure to provide an explanation (or an adequate explanation) for a comparatively short delay should normally operate so as to preclude that basis being considered by this Court on appeal.  

16                  Although the status of an applicant as unrepresented confers no licence to place to one side or to disregard the procedural requirements imposed by the Federal Court Rules,there remains the duty upon the Court to ensure that justice is done as between the parties to any litigation.

17                  In the present proceeding, however, neither the reasons for decision of the Federal Magistrate nor the proposed Notice of Appeal expose any basis upon which an appeal would have any prospects of success. Even if an order were to be made pursuant to O 52 r 5(3), leave to appeal would in any event be refused: see SZDGN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1543. Such a conclusion may be relied upon as a reason for an adverse exercise of the discretion conferred by O 52 r 5(3). Justice in such circumstances does not require a dispensation from compliance with O 52 r 5(2).

18                  When exercising the discretion conferred by s 24(1A) of the 1976 Act to grant leave to appeal, it may be accepted that that provision confers on the court “an unfettered discretion” in “unqualified terms”: Decor Corp Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 399 per Sheppard, Burchett and Heerey JJ. Considerations relevant when deciding whether leave to appeal should be granted are:

·                    whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court; and

·                    whether substantial injustice would result if leave were refused supposing the decision were wrong.

In the present proceeding it is not considered that the decision of the Federal Magistrate is attendant with sufficient doubt to warrant leave being granted. Nor is it considered that the Applicant would suffer substantial injustice. His application for a protection visa has been considered on its merits by both a delegate of the Minister and by the Tribunal. His application filed with the Federal Magistrates Court has been carefully considered and no legal error discerned. No injustice is exposed in such circumstances.

19                  The Federal Magistrate, in his reasons for decision, recounted the facts relevant to the Applicant’s claim for a protection visa. Those reasons record that “[n]o supporting evidence” for the claims being advanced by the Applicant was provided to the Department and also record the rejection of the claim. Those reasons further record that the Applicant was subsequently invited to attend a hearing before the Refugee Review Tribunal but that he declined that invitation. Express reference is made by the Federal Magistrate to some of the findings made by that Tribunal. Albeit not set forth expressly in his reason for decision, it is relevant to note that the Tribunal further stated:

[36] The applicant did not attend the Tribunal hearing. The applicant only made the briefest of claims. The applicant claims he belongs to a minority group in Pakistan, the ‘Mohanjir’ community who are Muslims by religion. Without further information from the applicant I am unable to accept that he belongs to the ‘Mohanjir’ community. Without further information from the applicant I am unable to be satisfied that he and his family have been persecuted by the majority community in Pakistan for several years. …

[37] I am required to consider the situation if the applicant, a Pakistani citizen from Sialkot, were to return to Pakistan now or within a reasonably foreseeable future. … But the independent evidence before me … does not suggest that the applicant would not receive the protection of the Pakistani authorities or that such protection would be ineffective, if the applicant were to be harmed. Without further information from the applicant I am unable to be satisfied that if he returns to Pakistan he will be killed, harmed or persecuted for a Convention related reason. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed.

[38] I do not accept there is a real chance the applicant will suffer harm now or in the foreseeable future if he were to return to Pakistan and I am not satisfied the applicant has a well-founded fear of persecution for a Convention related reason.

Given the paucity of the material submitted in support of his claim and the paucity of the material apparently available to the Tribunal, and the decision of the now Applicant not to accept the invitation extended to him to attend a hearing before the Tribunal, these conclusions were perhaps not unexpected.

20                  The reasons for decision of the Federal Magistrate then outline the manner in which he approached his task. The Federal Magistrate observed that “the applicant’s original application made unparticularised contentions of ‘gross violations of the Regulations and the Act’…”. An amended application was apparently filed from which the Federal Magistrate discerned “four essential points”.

21                  No error is discernible in the reasons of the Federal Magistrate in the manner in which he resolved those four points.

22                  To the extent that it is possible to give content to the Grounds of Appeal as formulated in the proposed Notice of Appeal, it would appear that the Applicant seeks to again agitate those issues previously canvassed before the Federal Magistrate. In the absence of any reason to doubt the conclusions of the Federal Magistrate, he should not be permitted that further opportunity before this Court. Although one of the Grounds seeks to contend that “the Respondents did not [apply] the proper law and procedure”, neither the “law” nor the “procedure” were further identified in any meaningful way. Each of the three proposed Grounds, it is considered, can properly be characterised as an impermissible attempt to challenge such factual conclusions as have been made by the Refugee Review Tribunal.

23                  When considering the present Application, the Court had available to it the Court Book prepared for the purposes of the hearing before the Federal Magistrates Court. An independent review of that Book, it should be noted, disclosed no discernible error in the manner in which either the Tribunal or the Federal Magistrate proceeded. Neither the Applicant nor the Respondent Minister contended that recourse should be had to contents of that Book for the purposes of resolving the present Application. Other than also reviewing the reasons for decision of the Tribunal, the resolution of the present Application has thus ultimately been confined to a consideration of the Application, the Affidavit filed in support and the reasons for decision of the Federal Magistrate. 

24                  The Application is to be dismissed. The Respondent Minister initially sought an order for costs in a fixed sum but ultimately submitted that he only sought the usual order that costs should follow the event. It is appropriate that such an order should be made.

ORDERS

25                  The Orders of the Court are:

1.                  The Application for Leave to Appeal as filed on 20 May 2009 is dismissed.

2.                  The Applicant is to pay the First Respondent’s costs.

Associate:

Dated:         10 August 2009