FEDERAL COURT OF AUSTRALIA

SZRBN v Minister for Immigration and Citizenship [2012] FCA 984

THE COURT ORDERS THAT:

1.    The Application for leave to appeal is dismissed.

2.    The First and Second Applicants are to pay the costs of the First Respondent.

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

REASONS FOR JUDGMENT

1    The First Applicant is the husband of the Second Applicant and the father of the Third Applicant.

2    They arrived in Australia on 4 January 2011 and applied to the Department of Immigration and Citizenship for Protection (Class XA) visas on 18 February 2011. A delegate of the Minister for Immigration and Citizenship refused those applications on 13 April 2011.

3    On 18 May 2011 the Applicants sought review of the delegate’s decision by the Refugee Review Tribunal. The Tribunal affirmed the delegate’s decisions.

4    The Federal Magistrates Court on 11 May 2012 dismissed an application seeking review of the Tribunal’s decision: SZRBN v Minister for Immigration [2012] FMCA 384.

5    The Federal Magistrate noted that the application to that Court was filed outside the time prescribed by s 477(1) of the Migration Act 1958 (Cth). This difficulty was raised with the First Applicant. The Federal Magistrate rejected the application but nevertheless went on to conclude that an extension of time would have been refused even if made by reason of an absence of merit in the grounds upon which the application was advanced.

6    The Applicants now seek leave to appeal to this Court. Leave to appeal is required because a decision dismissing an application, by reason of it being out of time, is an interlocutory decision: Federal Court of Australia Act 1976 (Cth) s 24(1A). See: SZAJB v Minister for Immigration and Citizenship [2008] FCAFC 75, 168 FCR 410 at [23] per French CJ, at [68] per Allsop J, at [114] per Tracey J; Lui v Secretary, Department of Education, Employment and Workplace Relations [2012] FCA 216 at [2] per Perram J.

7    The First Applicant appeared on his own behalf with the assistance of an intepreter and purported to appear on behalf of his wife and their son. A party, including the wife, may only appear in person or by a lawyer: Federal Court Rules 2011 (Cth) r 4.01. The son is a minor and hence only permitted to start proceedings by his litigation representative: r 9.61. Although no formal application was made to dispense with the requirements of r 4.01, an order should be made dispensing with the requirements of that rule to permit the husband to appear on his wife’s behalf. It is also prudent to make an order appointing the First Respondent as the litigation representative of the son.

8    The Application for leave to appeal is to be dismissed.

An Application Out of Time – The Refusal of an Adjournment

9    The Federal Magistrate was correct in his conclusion that the Application as filed in the Federal Magistrates Court was filed outside the time prescribed by s 477(1) of the Migration Act. That subsection provides as follows:

An application to the Federal Magistrates Court for a remedy to be granted in exercise of the court's original jurisdiction under section 476 in relation to a migration decision must be made to the court within 35 days of the date of the migration decision.

The “date of the migration decision” is fixed by s 477(3)(b) as being “the date of the written statement”. That date in the present proceeding was 9 December 2011. The Application to the Federal Magistrates Court was made on 16 January 2012. As noted by the Federal Magistrate, that application was 3 days outside the time prescribed. On any manner of calculation, the application to the Federal Magistrates Court was not filed “within 35 days”.

10    Section 477(2) confers a discretionary power to extend the time available to a claimant to seek judicial review of a migration decision. That subsection provides as follows:

The Federal Magistrates Court may, by order, extend that 35 day period as the Federal Magistrates Court considers appropriate if:

(a)    an application for that order has been made in writing to the Federal Magistrates Court specifying why the applicant considers that it is necessary in the interests of the administration of justice to make the order; and

(b)    the Federal Magistrates Court is satisfied that it is necessary in the interests of the administration of justice to make the order.

Given the discretionary power to extend time, one course open to the Federal Magistrate was to have granted the Applicants an adjournment so that consideration could have been given (inter alia) to the basis upon which an extension of time could have been sought.

11    No application has been made to this Court seeking to challenge the decision of the Federal Magistrate not to adjourn the proceeding. But the fact that the Applicant is unrepresented perhaps warrants independent consideration being given to whether any such challenge would have any prospects of success. The apparent lack of utility in seeking leave to appeal from a decision confined simply to a dismissal of a proceeding as incompetent for non-compliance with s 477(1) also requires some consideration to be given to whether the Federal Magistrate’s approach is open to challenge on some alternative ground.

12    An adjournment, it has long been recognised, is a means whereby prejudice to a party – especially an unrepresented party – may be avoided: Sullivan v Department of Transport (1978) 20 ALR 323 at 343 per Deane J. A refusal of an adjournment may constitute a denial of procedural fairness (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 at [40], 209 CLR 597 at 611 per Gaudron and Gummow JJ; McGibbon v Linkenbagh (1996) 41 ALD 219 at 226 per Kiefel J) and may constitute jurisdictional error (Minister for Immigration and Citizenship v Li [2012] FCAFC 74, 202 FCR 387 at [7] per Greenwood and Logan JJ and [104] per Collier J).

13    “The proper exercise of the discretion to adjourn entails a balancing exercise taking into account relevant considerations”: Director of Public Prosecutions (NSW) v Chaouk [2010] NSWSC 1418 at [54] per Johnson J. A decision to grant or refuse an adjournment is an exercise of a discretionary judgment going to a matter as to the practice and procedure of the Court.

14    “Particular caution” must be exercised by an appellate court when reviewing such decisions: Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170 at 177 per Gibbs CJ, Aickin, Wilson and Brennan JJ; National Mutual Holdings Pty Ltd v Sentry Corporation (1988) 19 FCR 155 at 161 per Bowen CJ, Woodward and Lockhart J, Bufalo v Official Trustee in Bankruptcy [2011] FCAFC 111 at [35] per Mansfield, Besanko and Flick JJ. Although decisions to grant or refuse adjournments are thus open to challenge, an appellate court “will rarely disturb” such decisions made by judicial officers: Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197 at 200 per Kirby P.

15    The Applicant in the present proceeding “sought an adjournment of the hearing to obtain legal advice” but that application was refused: [2012] FMCA 384 at [21]-[22]. In refusing the adjournment application, the Federal Magistrate considered:

    the repeated occasions upon which the 35 day period had previously been raised by both the Court and the Respondent Minister; and

    the opportunity previously extended to obtain the advice of a lawyer on the Federal Magistrates Court “RRT Legal Advice Scheme”.

Short of granting an adjournment, the Federal Magistrate further considered whether the applicant should be given an opportunity to make an application for an extension of time “at the hearing”: [2012] FMCA 384 at [27]. One factor taken into account when deciding not to grant even that opportunity was that “any such course would be an exercise in futility.”

16    In the absence of any error in the conclusion of the Federal Magistrate that the grounds upon which judicial review of the Tribunal’s decision was sought lacked merit, any challenge to the decision to refuse an adjournment would itself have been without merit. The fact that another Federal Magistrate may have exercised the discretion differently and granted the adjournment does not in itself expose any basis upon which leave to appeal should be granted: Applicant M171/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 220 at [25], 83 ALD 780 at 782 per Gray J.

The Application for Leave to Appeal and the Absence of Merit

17    The order ultimately made by the Federal Magistrate was to dismiss the Application as “not competent pursuant to s.477(1)”. No order was made pursuant to s 477(2) of the Migration Act.

18    Except perhaps in those situations where there is a factual dispute as to whether or not the time limits imposed by s 477(1) have been complied with, the utility in seeking to appeal such a decision seems questionable. If an application has not been brought within time, it would seem almost inevitable that it must be dismissed. Other than denying a litigant an opportunity to seek an extension of time pursuant to s 477(2), a decision to dismiss an application for non-compliance with s 477(1) would appear to be a decision not readily open to challenge. Indeed, that may be a reason why the legislature saw fit to confine the prohibition on appeals to this Court in s 476A(3) to decisions made pursuant to s 477(2).

19    But Counsel for the Respondent Minister raised no question as to the competence of the Court resolving the present Application for leave to appeal.

20    In making the order pursuant to s 477(1) the Federal Magistrate expressly referred to SZQDZ v Minister for Immigration and Citizenship [2012] FCAFC 26, 200 FCR 207. Keane CJ, Rares and Perram JJ there concluded that the Federal Court had jurisdiction to review a decision made under s 477(1). That issue had arisen because s 476A(3) of the Migration Act provides that no appeal lay against a decision to grant or refuse an extension of time pursuant to s 477(2). In so concluding, their Honours held:

[19]    As has been mentioned, each applicant did, in fact, make an application to extend the 35 day time limit under s 477(2) but each of those applications was unsuccessful. Indeed, it was because those applications had failed that the Federal Magistrates Court decided that the 35 day time limit specified in s 477(1) barred all the applicants’ claims to relief. The important point here is that the subsequent and consequential orders dismissing each proceeding were not made under s 477(2) for they were not orders either making or refusing to make an order extending time. Consequently, s 476A(3)(a) does not bar an appeal from those orders: this follows from the intractability of the proposition that an order dismissing a proceeding is not, on any view, an order making or refusing to make an order extending time.

The Federal Magistrate in the present proceeding also referred to the decision in SZQPN v Minister for Immigration and Citizenship [2012] FCA 424.

21    The decision of the Full Court in SZQDZ is, with respect, curious. It seems to have the consequence that a decision made to dismiss an application where made outside the time prescribed by s 477(1) is reviewable, whatever may be the utility of such review; “an appeal may not be brought”, however, from a decision refusing to make an order extending time pursuant to s 477(2). The result to a claimant is the same – his “application to the Federal Magistrates Court for a remedy” has been unsuccessful. But the route taken by the Federal Magistrate in disposing of his application determines whether he can seek to have that decision considered by this Court.

22    Left unexplained is why judicial review should remain available in respect to (for example) a denial of procedural fairness when making a decision that an application has not been made within the time prescribed – but not available when exercising a discretionary power to grant or refuse an extension of time. A denial of procedural fairness may occur just as easily when making a decision pursuant to s 477(1) as when making a decision pursuant to s 477(2).

23    Also left to future consideration is the utility in seeking review of a decision refusing to extend time pursuant to s 477(2): BZABK v Minister for Immigration and Citizenship, [2012] FCA 774 at [37]-[38].

24    Although Counsel for the Respondent Minister did not contend that the present Application was incompetent, she did submit that an applicant seeking leave to appeal an interlocutory decision as in the present case must establish that:

    the judgment is attended with sufficient doubt to warrant it being reconsidered; and

    substantial injustice would result if leave were refused.

In Re CSR Limited [2010] FCAFC 34 at [5], 183 FCR 358 at 362, Keane CJ and Jacobson J observed that “[g]enerally speaking, leave to appeal will be granted where there is a reasonably arguable case that the decision below is affected by appellable error, and a grant of leave is necessary to remedy a substantial injustice”.

25    In making the order dismissing the application before him, the Federal Magistrate considered not only the terms of s 477(1) – but also each of the grounds upon which review was sought of the Tribunal’s decision. It was in that context that the Federal Magistrate concluded that the “… grounds are so unmeritorious that it would not have been in the interest of the administration of justice to extend time merely to immediately dismiss the application”: [2012] FMCA 384 at [37]. See also: Bufalo v Official Trustee in Bankruptcy [2011] FCAFC 111 at [33] per Mansfield, Besanko and Flick JJ.

26    The Federal Magistrate was correct in his assessment of the merits of the grounds upon which judicial review was sought. It follows (inter alia) that no “substantial injustice” would be suffered by the Applicants in now refusing to grant leave to appeal.

27    Before the Federal Magistrate the Applicants relied upon three grounds of review which provided in part as follows:

1.    The Tribunal made a jurisdictional error that the Tribunal rejected the applicant’s claim on the basis of the wrong findings that the applicant’s claim for fear of persecution in Bangladesh was not consistent with his part actions.

…

2.    The Tribunal made a jurisdictional error that the Tribunal rejected the applicant’s claim on the basis of wrong findings and reasons and also irrelevant requirements to seek protection under United Nations Convention.

…

3.    The Tribunal made a jurisdictional error that the applicant did not get enough time and opportunity to address the inconsistency according to the Migration Act 1958 (the Act). …

The first two grounds were correctly characterised by the Federal Magistrate as a “… grievance with the Tribunal’s factual findings”: [2012] FMCA 384 at [38]. The third ground was characterised as being a denial of procedural fairness: [2012] FMCA 384 at [50]. The Federal Magistrate concluded that the “inconsistencies” relied upon did not constitute “information” for the purposes of s 424A of the Migration Act and further concluded that the Tribunal’s perception of “inconsistencies” in the Applicants’ evidence had, in any event, been put to both the First Applicant and his wife, the Second Applicant: [2012] FMCA 384 at [54]-[56]. It was further concluded that the Tribunal had not “acted unfairly”.

28    None of these conclusions, it is respectfully considered, is attended with sufficient doubt to warrant leave to appeal being now granted.

29    Nor do the grounds upon which leave to appeal is now sought expose any more certain basis upon which leave could be granted. Those grounds are set forth in the Application for leave to appeal as follows:

1.    I do not know the law and I did not have knowledge about the time limitation.

2.    I have been suffering from financial hardship so I can’t afford a lawyer.

3.    I need permission of the Court to lodge my case to proof that the Refugee Review Tribunal made mistakes.

4.    My case before the Refugee Review Tribunal was not dealt with proper procedure and the Tribunal did not give me enough opportunity to me with information to explain my wife’s statement to the Tribunal about the rejection.

5.    My wife is mentally sick but the Tribunal did not consider it.

None of those grounds provide any reason to question the conclusions reached by the Federal Magistrate or any basis to conclude that the Applicants have “a reasonably arguable case”. The fact is that the Applicants have had their case considered by the Federal Magistrate even though they failed to make an application within the 35 days prescribed by s 477(1). And, as noted by the Federal Magistrate, the Applicants had been repeatedly advised as to the requirement to commence proceedings within time and were given repeated opportunities to both seek and obtain legal advice (on a pro bono basis from the Refugee Review Tribunal Legal Advice Scheme panel) and to make an application for an extension of time under s 477(2). Grounds 1 and 2 are therefore without substance. Ground 3 does not identify the “mistakes” relied upon. Ground 4 was a ground raised before the Federal Magistrate and on the basis of the reasons would have been correctly resolved had the Federal Magistrate in fact been required to determine it. Ground 5 misstates the facts. As noted by the Federal Magistrate, the Tribunal “... accepted that the applicant’s wife had ‘serious medical issues’ …” but further concluded that “… the medical evidence did no (sic) support the claim that there had been some impact on her memory or ability to recall significant events …”: [2012] FMCA 384 at [82].

Conclusions

30    The Application for leave to appeal should be dismissed with costs.

31    It matters not whether the present Application for leave to appeal had been framed as a challenge to the decision of the Federal Magistrate to refuse an adjournment or as a challenge to the decision to dismiss the Application for being outside the time prescribed by s 477(1). The result would have been the same.

The Orders of the Court Are:

1.    The Application for leave to appeal is dismissed.

2.    The First and Second Applicants are to pay the costs of the First Respondent.

Associate:

Dated:    7 September 2012