FEDERAL COURT OF AUSTRALIA

SZJFC v Minister for Immigration and Citizenship
[2009] FCA 1322

SZJFC v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL

NSD 342 of 2009

RARES J

2 NOVEMBER 2009

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant 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 entered orders can be located using eSearch on the Court’s website.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

1                     This is an application for an extension of time in which to file a notice of appeal from a decision of the Federal Magistrates Court.  On 23 March 2009 that Court dismissed an application for constitutional writ relief challenging a decision of the Refugee Review Tribunal that had affirmed the decision of a delegate of the Minister not to grant the applicant a protection visa:  SZJFC v Minister for Immigration [2009] FMCA 268.

2                     The applicant filed the application for leave to appeal on 24 April 2009, having sworn an affidavit in support of it on 17 April 2009.   The Minister accepts that he is not able to demonstrate any prejudice arising from the short delay between the 21 days in which the applicant could have filed an appeal as of right and the time at which he commenced these proceedings.  However, the Minister notes that the applicant has not provided any substantial explanation for his delay.  But more particularly, he has not articulated any intelligible basis to suggest that, if the application were granted, the proposed appeal would enjoy any reasonable prospect of success.

The proceedings before the Tribunal

3                     The proceedings before the tribunal culminated after a third hearing before it.  The previous two hearings had resulted in decisions that were set aside by consent orders of the Federal Magistrates Court.  The applicant is an Indian who was born in the state of Tamil Nadu and arrived in Australia in 2005.  He had previously spent much of the preceding four years in South Korea.  In its decision the subject of the present application, the tribunal carefully considered all of the evidence before it including matters that had been raised by the applicant in the two preceding hearings.

4                     The trial judge found that after reciting all the evidence before it, the tribunal concluded there were good grounds to reject the applicant’s evidence for reason of his lack of credibility.  His Honour also noted that the tribunal had identified inconsistencies between the applicant’s claims and objective evidence.  His Honour considered each of the substantial claims which the applicant had made before the tribunal and the tribunal’s consideration of them in his reasons.  He noted that the power of the Federal Magistrates Court to set aside the tribunal’s decision and remit it for further consideration could only be exercised if he were satisfied that the decision was effected by jurisdictional error.

5                     His Honour said that the applicant had presented a number of documents to the Court, but that many of the contentions in them were too general to be meaningfully applied or had been taken from precedents with little or no relevance to the tribunal’s reasoning in the applicant’s case.  His Honour said that he had carefully considered the tribunal’s reasoning and was unable to detect any error or other basis to support the applicant’s claims for relief so far as they were understandable.  He found that the applicant’s oral submissions invited his Honour to accept the truth of his substantive claims before the tribunal.  The trial judge correctly observed that the Court did not have power to do so.

6                     This morning, the applicant filed a further affidavit which he swore yesterday.  He said that he filed the application for an extension of time because he had been outside the time limit for filing an appeal due to unavoidable circumstances having heard “… bad news from my family in India and I was emotionally, psychologically affected”.  He gave no further detail.  He also told me that he had a bad ankle that was injured and is causing him pain.

7                     No medical certificate or other medical evidence was tendered to support any conclusion that for the last six months, or any part of them, such an injury had any impact on the applicant’s ability to prepare for today’s hearing or to explain a basis upon which the trial judge made any arguable error in dismissing the application.  The affidavit filed today also noted that the applicant had had some communication difficulties in obtaining the material necessary in time to obtain a fee waiver for a notice of appeal in this Court.  He said also that on 17 July 2009 he had filed an amended application, which I take to be an amended draft notice of appeal.

8                     I do not regard the explanations offered by the applicant as being at all satisfactory.  They are vague, general and imprecise.  However, I must allow for the fact that he is an unrepresented litigant dealing with what may be legally complex and difficult matters in a language and court system that are not his own.  I have therefore considered whether despite the lack of persuasiveness of any explanation for delay, the appeal which the applicant seeks to bring could have any prospect of success.

9                     The draft notice of appeal filed on 24 April contained boilerplate and unparticularised generalities as the grounds of appeal namely:

·               “the Tribunal did not accord my Review application with the procedural fairness;

·               Jurisdictional Error;

·               the Tribunal did not fairly and reasonably when Review my protection visa application;

·               the Tribunal did not apply correct test in Relation to my claims and my past political activities, my faith in Christianity and current situation in my country.”

10                  As articulated, none of these grounds disclosed any arguable case on which the Court could uphold an appeal.  I allow for the fact that the grounds of appeal are directed to the tribunal’s decision and not errors said to have been made by the trial judge.  I have interpreted the draft notice of appeal as an assertion that his Honour failed to perceive the asserted faults of the tribunal.  Nonetheless, these grounds are pitched at a level of generality that does not reveal any substantive meaning.  It does not identify any failure to accord procedural fairness or any jurisdictional error or instance in which the tribunal failed to apply whatever might be the “correct test”.  In my view, the grounds in the draft notice of appeal, on the material presently before me, have no prospect of success.

11                  The amended application filed on 17 July 2009 can be treated as an amended draft notice of appeal.  It substantially mirrors the amended application filed on 6 February 2009 that his Honour considered below, but makes a number of departures.  Some of those departures are obvious typographical errors, perhaps taken from an earlier precedent.  There is one deliberate change that varies a particular, relied on before his Honour, but that appeared to have some relationship to the applicant’s actual claims.

12                  While the draft amended application of 17 July has a number of incorrect dates in its prefatory part, it is clear enough that the applicant would be able to cure those matters without any difficulty.  There is no suggestion that an amendment to bring them into conformity with the actual amended application of 6 February below could not be made.  I will proceed on the basis that those amendments could be made.  The amended grounds were that:

(1)        the tribunal failed to complete the exercise of its jurisdiction;

(2)        the decision led to the omission of principles of natural justice while making a decision.

13                  Three particulars were given for the second ground.  The first was that the tribunal rejected the applicant’s claims on the basis that court papers had not been presented to it by him to corroborate those claims, leading to an adverse credibility finding.  Secondly, the particulars alleged that the tribunal failed to satisfy itself whether the applicant had a well-founded fear of persecution, based upon probative material or logical grounds.  Those particulars are so vague, general and uncommunicative of any real case that I am not satisfied they demonstrate any prospect of success for an appeal.  In any event, his Honour dealt with and rejected those matters in a way which was open to him on the material in the Court below.  There is no reason to think that he erred.  The third particular was that:

“The situation of the Pro-LTTE Political activities were not taken into account, in spite of the independent country information report mentioning the independent tamil revolutionary struggle, launched by TNLA against the State.”

This particular referred to two organisations, “Pro-LTTE” and “TNLA,” in substitution for the single reference to “PWG” in the grounds in the amended application before his Honour.  The trial judge observed that the reference to the “PWG” was obscure, and that the applicant had made no claims to belong to that group.  His Honour considered that this particular had been taken from a precedent with no bearing on the present matter.  He correctly rejected the ground.

14                  Having myself, read the decision of the third tribunal, I agree with his Honour.  The applicant has now sought to change the particulars to mention, at a high level of generality, two organisations that were referred to during the course of his evidence and in the third tribunal’s decision.

15                  In my opinion the appellant should not be allowed to rely on this particular for two reasons.  First, the tribunal plainly did take into account the material relating to assertions made by the applicant regarding both the LTTE and TNLA.  How it supposedly erred in dealing with those matters was not identified in a meaningful way in the draft amended application.  Secondly, an appeal is not a mechanism for the issues and evidence below to be considered at large:  Coulton v Holcombe (1986) 162 CLR 1 at 7.  As Gibbs CJ, Wilson, Brennan and Dawson JJ said in that case (Coulton 162 CLR at 7):

“It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial.  If it were not so the main arena for settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish.”

16                  The applicant has not established any basis on which an amendment to the grounds could be allowed now, after the hearing below.

17                  The last ground in the amended application, repeats that in the 6 February document.  It was that the tribunal had failed to make findings on all the applicant’s claims because the tribunal had to refer afresh to, or reconsider, the material placed before it by him, including statutory declarations and other “court material evidences.”  Again, that ground is not intelligible.

18                  When I asked the appellant to explain why the appeal he was seeking to bring had some basis on which the Court might uphold it, he persistently refused to answer that question.  Instead, he asserted that he just wanted more time and, if I would only give him more time, he would provide an explanation, presumably later.  He repeatedly referred to the fact that his ankle was injured and offered to show me the injury.  I asked him, with some persistence, why he was not able to tell me what the error made by his Honour or the tribunal was.  But, he did not do so.

Conclusion

19                  In my opinion there is no substance in this application.  The applicant has had over six months to identify what arguable error his Honour may have made in arriving at his decision to dismiss the application for constitutional writ relief.  Despite that opportunity and the applicant being on notice that the matter had been fixed today for hearing of the application for an extension of time, he has not sought to explain any matter of substance to suggest why any appeal would have a prospect of success. 

20                  In determining whether or not to grant an extension of time in which to lodge an appeal the Court ordinarily has regard to the merits of the underlying appeal that is sought to be filed.  An application under O 52 r 15(2) to file an appeal out of time must demonstrate special reasons.  Usually the Court requires an explanation of the delay but it will be more ready to grant the application if the case appears to be strong on its merits and ought to be heard in fairness to the parties;  if the case appears to be flimsy and weak on the merits the court will not normally extend the time.  It does not go into detail on the merits but considers what the case truly is about:  R v Secretary of State for the Home Department;  Ex parte Mehta [1975] 1 WLR 1087 at 1091 per Lord Denning MR.  I explained the relevant principles in SZAPG v Minister for Immigration & Citizenship [2007] FCA 372 at [5]-[8];  see also Jackamarra v Krakouer (1998) 195 CLR 516 at 519-520 [3]-[4] per Brennan CJ and McHugh J, 540-541 ([66] par 4) per Kirby J.

21                  In Jess v Scott (1986) 12 FCR 187 at 191-192 Lockhart, Sheppard and Burchett JJ observed that whenever the Court saw a ground which justified departure from the general rule in a particular case then the discretion to extend time would be enlivened.  Here the applicant has chosen not to provide any argument in writing or orally, identifying some error or injustice in the way in which the proceedings were conducted by the trial judge or in the third tribunal.  I am of opinion that none of the grounds in the amended application filed on 17 July 2007 or in the draft notice of appeal filed on 24 April 2009 have any prospect of success.  Accordingly the grant of an extension of time within which to file a notice of appeal would be futile.

22                  In my opinion, the application should be dismissed.

Associate:

Dated:         17 November 2009