FEDERAL COURT OF AUSTRALIA

SZQKX v Minister for Immigration and Citizenship [2012] FCA 421

THE COURT ORDERS THAT:

1.    The applicant’s application filed on 2 December 2011 for an extension of time to file an application for leave to appeal is dismissed.

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

EX TEMPORE REASONS FOR JUDGMENT

1    This is an application under Rule 35.14 of the Federal Court Rules 2011 for an extension of time to seek leave to appeal. The judgment the applicant seeks to appeal was pronounced by Driver FM on 11 November 2011, following a show cause hearing under Rule 44.12 of the Federal Magistrates Court Rules 2001. Rule 44.12 allows the Federal Magistrates Court to dismiss an application summarily if it is not satisfied an applicant has an arguable case for relief. Rule 44.12(2) provides that such a dismissal is interlocutory. That being so, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) provides that an appeal may only be brought against such a judgment by leave. On an application for leave to appeal, an applicant must show that the judgment below is attended by sufficient doubt to justify leave being granted and that substantial injustice would flow were leave to appeal the judgment to the Full Court not granted. However, this applicant faces a more immediate hurdle.

2    Under Rule 35.13 of the Federal Court Rules 2011, an application for leave to appeal must be filed within 14 days after the date on which the judgment was pronounced. As I have already noted, judgment was pronounced in this matter on 11 November 2011. The applicant was, therefore, required to file his application for leave to appeal by 25 November 2011. Instead, he filed it on 2 December 2011. It was, therefore, some seven days late. On an application for an extension of time, there must, among other things, be a satisfactory explanation for any delay. The only explanation the applicant has given for the delay is that he did not receive a copy of the decision of Driver FM until 29 November 2011. The difficulty with this explanation is that the applicant was present at the hearing on 11 November 2011, when Driver FM pronounced his judgment and gave his reasons for decision ex tempore. It follows that the applicant did not need the written reasons to know why it was that his application for judicial review was dismissed.

3    Moreover, at the hearing on 11 November 2011, the applicant was assisted by an interpreter. It must follow that the receipt of the written reasons in English would not have greatly advanced his understanding of the reasons why his application was dismissed. I do not, therefore, consider the applicant has given a satisfactory explanation for his delay. However, even if there were a satisfactory explanation for his delay, I also consider that the applicant would fall at the next hurdle. That is, he has not shown that the decision of Driver FM is attended by sufficient doubt to warrant leave being given for it to be considered by the Full Court. In his proposed notice of appeal, the applicant has set out three grounds of appeal. They may be summarised as follows:

1.    the Refugee Review Tribunal was biased and did not make a fair decision;

2.    the decision of Driver FM is not fair; and

3.    Driver FM did not properly consider the application because he failed to find that the Tribunal had failed to consider the risk if the applicant were to return to China.

4    The first thing to be noted about these proposed grounds of appeal is that none of them is particularised, for example, the alleged bias on the part of the Tribunal, or the lack of fairness of Driver FM. Without such particulars, it is not possible to discern whether Driver FM made an error and, if so, whether it was of a kind that warrants leave to appeal being granted. However, in relation to the alleged bias on the part of the Tribunal, the applicant made a similar complaint to Driver FM, in his application for judicial review. He said that the Tribunal’s decision lacked procedural fairness, which, of course, includes bias. Whilst this allegation was also unparticularised before him, Driver FM considered it in some detail and concluded it was not made out: see [2011] FMCA 879 at [22]–[26]. Having reviewed those reasons, I can detect no error in his Honour’s treatment of that issue.

5    As to the second proposed ground of appeal, that is the broad allegation of unfairness in Driver FM’s judgment, I have examined his Honour’s reasons in relation to the only other ground of review before him, viz that the Tribunal did not fairly assess his application, and I can detect no error in his Honour’s treatment of that ground. Essentially, his Honour found that the applicant was attempting to seek a merits review of the Tribunal’s decision, and that was not open on a judicial review application to the Federal Magistrates Court.

6    Finally, the third proposed ground of appeal to this Court is to the same effect as the second ground of review before Driver FM that I have just mentioned. I do not consider it has any merits for the same reasons. Specifically, it is attempting to seek a merits review of the Tribunal’s decision, which is all the more impermissible before this Court.

7    For these reasons, the applicant’s application for an extension of time to file an application for leave to appeal must be rejected.

Associate:

Dated:    26 April 2012