FEDERAL COURT OF AUSTRALIA

SZMFI v Minister for Immigration and Citizenship [2010] FCA 386

THE COURT ORDERS THAT:

1.                  The applicant’s Application for Extension of Time to File and Serve a Notice of Appeal be dismissed.

2.                  The applicant pay the first respondent’s costs of and incidental to the Application.  

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 Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1                                             On 12 April 2010, the applicant filed an Application in this Court in which she sought an order extending the time within which she might file and serve a Notice of Appeal in respect of a judgment of a Federal Magistrate delivered on 5 August 2009 (SZMFI v Minister for Immigration and Citizenship [2009] FMCA 789).

2                                             The Federal Court Rules require that any Notice of Appeal in the present case be filed within 21 days after 5 August 2009 (as to which see O 52 r 15(1)(a) of the Federal Court Rules).  Therefore, the applicant should have filed her Notice of Appeal by no later than 26 August 2009.  There has been significant delay on the part of the applicant in attending to her right of appeal.  That delay is between seven and eight months.  Although the first respondent does not assert that the delay has caused him prejudice, a delay of seven to eight months requires explanation. 

3                                             The Federal Magistrate dismissed an application by the applicant for judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 15 March 2009 and handed down on 16 March 2009.  The Tribunal had affirmed a decision of a delegate of the Minister for Immigration and Citizenship (the delegate) to refuse to grant a protection visa to the applicant. 

4                                             The applicant is a citizen of the People’s Republic of China.  She arrived in Australia on 3 September 2007 having legally left China on a Chinese passport issued in her own name.

5                                             On 16 October 2007, the applicant lodged an application for a protection visa with the Department of Immigration and Citizenship.  A delegate of the Minister refused the application for a protection visa on 8 January 2008. 

6                                             On 8 February 2008, the applicant applied to the Tribunal for a review of that decision.  The Tribunal affirmed the decision under review on 8 April 2008. 

7                                             On 9 September 2008, the Federal Magistrates Court dismissed an application for review of the Tribunal’s decision. 

8                                             On 26 November 2008, the Federal Court allowed an appeal from the Federal Magistrate’s decision and remitted the matter to the Tribunal for determination according to law.

Second Decision of the Tribunal

9                                             There was then a second Tribunal hearing which was determined in March 2009, as I have already mentioned. 

10                                          Before the Tribunal, the applicant claimed that she is a Catholic and was an activist in the Roman Catholic underground Church in China.  She claimed that she had been baptised as “Rosa” on 15 March 2005.  She claimed that in 2005 she spread the gospel in the Yidu area of China and with three other people set up Catholic groups in that area.  She also claimed that she distributed religious propaganda in villages around Yidu town. 

11                                          The applicant claimed that her activities came to the attention of the local government in Yidu and that on 1 March 2007 she was interrogated by the Public Security Bureau (PSB) because she had been suspected of attending an illegal gathering in Qianhu.  She claimed that she was beaten.  She said that, because she refused to confess, she was released after a day.  She claimed that the PSB subsequently interrogated her on five or six separate occasions.  She claimed that she had been identified to the PSB by another person as the leader of Catholic groups in the area but that the PSB was unable to prove that.  She claimed that, in August 2007, the person who had introduced her to Catholicism was arrested by the PSB.  The arrest of this person frightened her and she sought the assistance of a friend to obtain a visa to leave China. 

12                                          The Tribunal did not accept the core claims of the applicant.  It gave detailed reasons for the view which it took.  It is not necessary in these Reasons for Judgment to traverse the Tribunal’s reasons in any detail. 

The Decision of the Federal Magistrate

13                                          The Federal Magistrate correctly identified the contentions made before her concerning the alleged errors on the part of the Tribunal (SZMFI v Minister for Immigration and Citizenship [2009] FMCA 789 at [17]).  At [17], the Federal Magistrate said:

17.       The application contends generally that there was an error of law in the Tribunal decision and that there was procedural error “constituting an absence of natural justice”.  The particulars to these two grounds are that there was no evidence that the Tribunal had taken any “genuine attempt to consider” the applicant’s evidence, particularly her written evidence submitted to the Tribunal.  The application then sets out in full the 13 paragraphs in the applicant’s response (in her statutory declaration sworn 28 February 2009) to the issues raised at the Tribunal hearing.  It is contended that there was procedural error constituting an absence of natural justice and that the decision “included” apprehended bias.

14                                          The Federal Magistrate did not accept that the Tribunal had failed to give genuine consideration to the applicant’s post hearing evidence and explained why she took that view at [18]–[20] of her Reasons for Judgment. 

15                                          The Federal Magistrate also considered the contentions raised by the applicant that the Tribunal had denied natural justice to her and was guilty of apprehended bias.  The Federal Magistrate found that there was nothing in the material before her that supported either of these allegations. 

16                                          The Federal Magistrate also considered whether there had been some procedural error on the part of the Tribunal but was unable to discern any such error.

17                                          The Federal Magistrate went on to raise various matters which had been drawn to her attention by Counsel for the Minister and dealt with those matters at [25]–[38] of her Reasons for Judgment.  I do not think it is necessary for me to take a like course as these matters were not raised by the applicant before me.  

Consideration and Decision

18                                          The applicant has appeared before me today representing herself.  She has raised a number of matters which may fairly be described as matters going to the merits of her visa application before the Tribunal.  She submitted that the Tribunal came to wrong conclusions based upon the evidence before it and was wrong in declining to accept her version of events.  She submitted that the Tribunal had acted unfairly towards her and had not given her a fair opportunity to present her case.  She also submitted, I think, that a necessary part of the Tribunal’s reasoning was to reject the evidence of a Catholic priest, Father McGee, and that this circumstance demonstrated reviewable error in some way on the part of the Tribunal. 

19                                          In my view, none of the matters raised by the applicant would give rise to a ground of appeal from the Federal Magistrate’s decision which had any prospect of succeeding.  It is not for this Court to review the merits of the Tribunal’s decision.  Everything which the applicant put to me today constituted an attempt to do just that.  As far as Father McGee is concerned, the Federal Magistrate found (correctly) that the Tribunal had not disregarded his evidence but rather had accepted it but that it did not change the Tribunal’s view of the applicant’s core claims (see SZMFI v Minister for Immigration and Citizenship [2009] FMCA 789 at [12]). 

20                                          The Draft Notice of Appeal attached to the applicant’s affidavit in support of the present Application contains the following grounds:

GROUNDS

1.         The Federal Magistrates [sic] erred in law.

2.         The Federal Magistrates [sic] was wrong in finding that the Refugee Review Tribunal (the Tribunal) acted properly in its findings.

Particulars:

1.         There is no evidence that the Tribunal has taken any genuine attempt to consider my evidence, properly and fairly.  The Tribunal’s decision has included apprehended bias.

2.         The Tribunal failed to comply with its obligations under s.425 of the Migration Act 1958, because the Tribunal failed to create a genuine opportunity for me to give my evidence or present my argument in support of my claims.

3.         The Tribunal failed to comply with its obligations under s.424A(1) of the Migration Agent 1958, [sic] because the Tribunal failed to provide me clearly the particulars of the information that has been used to affirm the decision which was under the review.

4.         In summary, I believe that the Tribunal failed to consider my review application properly and fairly; and the Tribunal must err in law in affirming the decision that is under review.

21                                          These grounds and particulars do not add to the substance of what I have already observed, which is that the applicant’s proposed appeal is really nothing more than an attempt to review the merits of the Tribunal’s decision.  The applicant did not attempt to support her allegation of bias on the part of the Tribunal.  There was nothing in the materials before me to support that allegation.

22                                          In my view, therefore, the applicant has no prospects of succeeding in any appeal that might ensue should I grant the extension of time which has been sought. 

23                                          In addition to satisfying me that there is some prospect in the foreshadowed appeal, the applicant is required to explain the delay between the time when she should have lodged the Notice of Appeal (26 August 2009) and the time when she filed the present Application (12 April 2010).  She gave the following explanation in her affidavit:

I did not receive the whole of the judgement of Federal Magistrates Court of Australia until now; and I thought that I could not lodge my appeal until I received the whole of the judgement. 

24                                          At the hearing today, the applicant amplified that assertion by attempting to explain that she was not well and had family problems at the time the Federal Magistrate delivered her decision.  It is quite clear, however, that the applicant was present at the Federal Magistrates Court when the Federal Magistrate delivered her decision ex tempore on 5 August 2009.  The applicant heard the decision, there was an interpreter present and presumably the interpreter interpreted the substance of the decision for the benefit of the applicant.  She must have appreciated that the Federal Magistrate had dismissed her application.  She was not then in detention but rather living in the community, presumably at the address which she had notified to the Federal Magistrates Court as her current residential address.  Indeed, she told me that she had only been detained very shortly before she lodged the present application.

25                                          The Federal Magistrate settled her Reasons for Judgment on 17 August 2009 and, in the ordinary course, those Reasons for Judgment would have been sent to the applicant at her then current residential address.  As at 17 August 2009, that address was the same address as had been previously notified to the Federal Magistrates Court as the applicant’s residential address.  It is difficult to accept that the applicant did not receive the settled Reasons for Judgment of the Federal Magistrate shortly after 17 August 2009.  Even if I were to accept the applicant’s assertions as to why she did not file her Notice of Appeal within time (about which I have serious reservations), the reasons given do not provide an adequate explanation for the delay.  The applicant had, on a previous occasion, sought judicial review of a Tribunal decision and had obviously appreciated the requirements of the Federal Court of Australia Act 1976 (Cth) and the Federal Court Rules in terms of the time within which the various applications had to be filed.  She must have appreciated that there were time limits and almost certainly appreciated that the time limits ran from 5 August 2009.  

26                                          The relevant part of the Rules of Court is O 52 r 15 which is in the following terms:

15        Time for filing and serving notice of appeal

(1)        The notice of appeal shall be filed and served:

(a)        within 21 days after:

(i)         the date when the judgment appealed from was pronounced;

(ii)        the date when leave to appeal was granted; or

(iii)       any later date fixed for that purpose by the court appealed from; or

(b)        within such further time as is allowed by the Court or a Judge upon application made by motion upon notice filed within the period of 21 days referred to in the last preceding paragraph.

(2)        Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal.

(3)        An application for leave under subrule (2) must:

(a)        be in accordance with Form 54A; and

(b)        include a statement indicating whether the applicant wishes to have the application dealt with without an oral hearing; and

(c)        be accompanied by an affidavit setting out:

(i)         the nature of the matter; and

(ii)        the factual and legal issues in dispute; and

(iii)       the reasons why leave should be given.

(4)        If a respondent objects to an application being dealt with without an oral hearing, the respondent must:

(a)        file a notice to this effect; and

(b)        serve a copy of the notice on each other party to the application.

27                                          The applicant in the present case must satisfy subr (2) and subr (3) of O 52 r 15.  The Full Court has held that a special reason within the meaning of O 52 r 15(2) of the Federal Court Rules is a circumstance which takes the case out of the ordinary run of cases in which an appeal should be filed within 21 days (Vu v Minister for Immigration and Citizenship (2008) 101 ALD 211 at [50] per Jessup J (with whom Gyles and Besanko JJ agreed). 

28                                          In Jess v Scott (1986) 12 FCR 187 at 195, the Full Court said:   

It is useful to consider the meaning and application of r 15(2) against a background of an understanding of how other courts have applied corresponding rules. But in the end, this Court must construe and apply the terms of its own rule. The question is what that rule means, and how it is to be applied to the circumstances of the case.

It is clear that the rule reflects the same general structure exemplified by the various decisions we have discussed -- the provision of a time for lodgment of an appeal, but the provision also of a discretion to permit an appeal out of time where it is shown that the circumstances warrant the exercise of that discretion. As Lord Guest, speaking for the Privy Council, put it in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12:

“The rules of court must prima facie be obeyed and in order to justify a court in extending the time during which some step in procedure requires to be taken, there must be some material on which the court can exercise its discretion. If the law were otherwise, a party in breach would have an unqualified right to an extension of time which would defeat the purpose of the rules which is to provide a time table for the conduct of litigation.”

What is needed to justify an extension of time is indicated in r 15(2) by the words “for special reasons”. It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, 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.

The proposition cannot be accepted that r 15(2) was intended to constrict the broad measure of justice for the individual case which the Court could award upon the principle of Gatti v Shoosmith. No return was contemplated to the old law by which the discretion of the Court to waive the rules was itself fettered by further rules. We agree with the dictum of Davies J cited earlier in these reasons, and we think the construction of the rule we have adopted is in line with the decisions in Ex parte Mehta, the Palata Investments case and Avery’s case.

It should not be overlooked that r 15(2) enables leave to be given “at any time”; the “special reasons” relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. “Special reasons” must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served.

29                                          In Parker v The Queen [2002] FCAFC 133 at [6] the Full Court said:  

6          In the civil jurisdiction, Wilcox J discussed at some length the matters which, in his opinion, were deserving of consideration when considering an application for leave to extend the time within which to file a notice of appeal:  see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344, a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth).  The matters which attracted his Honour’s attention were set out at 348-349:

1.         applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored.  The applicant must show an “acceptable explanation for the delay”; it must be “fair and equitable in the circumstances” to extend time;

2.         action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished;

3.         any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension;

4.         however, the mere absence of prejudice is not enough to justify the grant of an extension; and

5.         the merits of the substantial application are to be taken into account in considering whether an extension of time should be granted.

30                                          In matters such as the present, it will usually also be relevant for the Court to consider the importance of the issues raised in the proposed Notice of Appeal and the bona fides of the appeal. 

31                                          I am not satisfied in the present case that there is a special reason within the meaning of O 52 r 15(2) of the Federal Court Rules that would justify the extension of time sought in the present case.  I must not only consider and evaluate the explanation for the delay but I must also make an assessment of the strength of the proposed appeal.  As I have already mentioned, the applicant’s foreshadowed appeal has no prospect of succeeding. 

32                                          For all of these reasons, I am of the view that the Application should be dismissed with costs.  I will make orders accordingly. 

Associate:

Dated:         22 April 2010