FEDERAL COURT OF AUSTRALIA

MZYLJ v Minister for Immigration and Citizenship [2012] FCA 335

THE COURT ORDERS THAT:

1.    The application for an extension of time be dismissed.

2.    Save as may be the subject of orders previously made, the applicant pay the costs of the first respondent.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Before the court today is an application, filed on 6 January 2012, for an extension of time to lodge an appeal from a judgment of the Federal Magistrates’ Court of Australia given on 8 July 2011. In that judgment, the Federal Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal dated 19 July 2010, by which a decision of the delegate of the respondent Minister to refuse to grant the applicant a Protection Class XA visa under the Migration Act 1958 (Cth) (“the Act”) was affirmed.

2    At the time when the Federal Magistrate’s judgment was pronounced, the Federal Court Rules 2011 had not yet commenced. Under O 52 r 15 of the rules existing at the time, the applicant had 21 days after 8 July 2011 within which to file and serve a notice of appeal from the order made by the Federal Magistrate. That 21 days expired on 29 July 2011 which, as it happens, was the last business day before the commencement of the new rules. Under the previous rules, an application for an extension of time not having been made within the 21-day period referred to, the discretion of the court to extend time arose under subr (2) of O 52 r 15, which required that there be special reasons for the granting of such an extension. What that expression meant was the subject of the judgment of the Full Court in Jess v Scott (1986) 12 FCR 187 at 195:

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.

However, r 15(2) applied only to an application made outside the 21-day period referred to in r 15(1). Necessarily, in the facts of the present case any application made outside that period would have been governed by the provisions of the new rules. The power to grant an extension of time to file a notice of appeal now derives from r 1.39 of the new rules which makes no reference to the existence of special reasons. Rule 36.05 provides for the procedure which must be followed by a party seeking to invoke that power. In the circumstances, I propose to approach the present application by reference to the existing r 1.39, which gives the court a general discretion to extend time.

3    In my view, there will usually be three broad areas of inquiry which are apposite to an application for an extension of time to file an appeal. The first, and usually the most important, will be whether there is a satisfactory explanation offered by the intending appellant for his or her omission to lodge an appeal within time. Secondly, there will be the question whether there is any prejudice to the respondent to the proposed appeal arising by reason of the applicant’s failure to lodge his or her appeal within time. And, thirdly, in some cases it may be appropriate to consider the merits of the appeal, such that, for example, a proposed appeal which is manifestly devoid of merits might, in the discretion of the court, not be the subject of an extension of time, on the ground that any such extension would be futile. There may also be cases in which an examination of the merits of the intended appeal would demonstrate that manifest injustice would be visited upon the intending appellant if he or she were not given the opportunity to appeal from the judgment below.

4    In the present case, the Minister, who is the active respondent to the present application, has not suggested that he, or that the Commonwealth, would suffer any prejudice if the extension were granted, although he draws attention to the public interest in the prompt disposition of allegations that an important Commonwealth tribunal has exceeded, or not properly taken up, its statutory jurisdiction. The prejudice point, in my view, is not one which cuts one way or the other in the exercise of my discretion in the present case.

5    With respect to the merits of the proposed appeal, nothing to which the applicant has pointed, and nothing which I have been able to discern in the reasons of the Federal Magistrate, gives any rise to a suspicion that there might have been error on the part of his Honour. I do not propose to rehearse the facts with which Federal Magistrate dealt. It is sufficient to say that his Honour has delivered a reserved judgment and has dealt both with the factual and legal dimensions of the applicant’s then case. The applicant was, at that stage, represented by counsel, and every indication is that the case as so presented was carefully considered and properly dealt with, without error.

6    That brings me to what I have described as usually the primary matter for consideration in a case in which an extension of time is sought. I consider it to be the primary matter for consideration because the question is not whether the appeal would succeed or fail, but rather, whether the applicant’s omission to follow the conventional course prescribed by the Rules is one which should be excused. In this particular case, the applicant is by all appearances an intelligent man. He tells me that he worked as a sales executive in a bank in Kuala Lumpur. He tells me that he was aware that, in court proceedings, there would usually be a time limit for someone proposing to appeal from an adverse decision of a judge. Indeed, he tells me that he was aware that there would be a deadline for the lodging of an appeal from the judgment of the Federal Magistrate in this case. He relies upon the circumstance that he was not aware, and had not been informed by the solicitors then representing him, of the precise number of days within which he would conventionally be required to lodge an appeal. In the circumstances, that is neither here nor there.

7    The circumstances to which I refer are twofold. The first is that this is not a case in which the application for an extension of time was made only slightly beyond the specified time limit. As I have said, the time limit expired on 29 July 2011, and the application for an extension of time was made on 6 April 2012, more than 5 months later. The applicant’s ignorance of the actual time limit, in those circumstances, is a matter of insignificance. The second circumstance which bears upon the exercise of the discretion which I must make on this occasion is that the applicant very frankly told me this morning why he did not lodge an appeal with this court, either within the time specified or at any time thereabouts. He was represented before the Federal Magistrate by the Asylum Seekers Resource Centre. On what he has told me, it was because of his impecuniosity that the people at the centre advised him not to appeal to this court from the judgment of the Federal Magistrate, but rather to apply to the Minister under s 417 of the Act for a more favourable decision on his case, in substitution for that made by the Tribunal. That was an important decision which the applicant then made on advice, whether or not the driving force behind it was his impecuniosity.

8    An application to the Minister under s 417 relates not to the decision of the Federal Magistrate in a case such as the present, but to the original decision of the Tribunal. In applying to the Minister under that section, the applicant availed himself of an alternative to pursuing his legal challenge to the jurisdictional correctness of the Tribunal’s decision. That was a choice which he then made, and he tells me that he ultimately received the Minister’s decision, adversely to himself, in December 2011. It was only after he received that decision that he filed the application which is the subject of these reasons. In the view I take, far from the applicant being able to offer a satisfactory explanation for his omission to lodge an appeal within the period specified from the rules of the court, his case demonstrates that he consciously decided not to do so, or at least not to lodge an appeal within a period that would even approximate that specified under the Rules. He chose what was truly, in my view, an alternative course to maintaining his challenge to the validity of the original decision of the Tribunal.

9    This is, therefore, not a case in which there is any basis upon which the court would exercise its discretion to extend the time fixed by the Rules for the lodging of an appeal. The present application must be dismissed.

Associate:

Dated:    16 April 2012