The need for an extension of time & leave
9 An application for an extension of time within which to appeal is necessary because r 35.13 of the Federal Court Rules 2011 (Cth) provides that an application for leave to appeal is to be filed within 14 days after the date upon which the judgment appealed from was pronounced.
10 On the facts of the present case, any application for leave to appeal was required to be filed by 5 March 2018. The application for an extension of time was therefore some 9 days out of time.
11 An affidavit filed in support of the application provided in part as follows (without alteration):
2. APPLICATION FOR FEDERAL CIRCUIT COURT HAS BEEN DISMISSED AND I DO NOT AGREE WITH ITS DECISION
3. I WISH TO DO FURTHER REVIEW WITH YOUR COURT AND GET A MORE FAIR DECISION
4. MY APPEAL I DELAYED MY FURTHER APPEAL APPLICATION DUE BECAUSE OF MY FINANCIAL DIFFICULTY FOR THE APPLICATION FEE WHICH I WAS UANBLE TO AFFORD WITHIN 14 DAYS FROM THE FEDERAL CIRCUIT COURTOF AUSTRALIA. I COULD NOT GET HELP IN FILLING OUT ALL THE FORMS REQUIRED DUE TO MY LIMITED ENGLISH. I WISH THE COURT CAN CNOSIDER MY DIFFICULT SITATUION AND ACCEPT MY APPLICATION FOR FURTHER APPEAL.
12 The Draft Notice of Appeal, assuming both an extension of time and leave to appeal were to be granted, provided as follows (without alteration):
1. AAT and Federal Circuit Court failed to Consider my explanation for my appeal which I believe it is not fair for me.
2. I am a Malaysia Chinese and I am a victim and being targeted by local loan shark in Malaysia. I will be in great danger and harm if I return.
3. I cannot go back to Malaysia since I am very scared to be sentenced and discriminated.
4. Federal court did not well consider of my fears and persecution if return to my home country.
13 Notwithstanding the fact that:
the extension of time required within which to seek leave to appeal is but a comparatively short period; and
the Respondent Minister does not claim any prejudice,
no extension of time is granted because:
the affidavit, either construed by reference to its text or by reference to the Draft Notice of Appeal, fails to identify any factual or legal basis upon which the Applicant formed any sustainable view as to why she did "not agree with [the Federal Circuit Court's] decision" or why the hearing before the Federal Circuit Court was anything other than "fair"; and
the assertions as to "financial difficulty" and the absence of any ability to "get help in filling out all the forms" are simply that: assertions. No details are provided of the financial circumstances of the Applicant and there is no detail of what steps she did in fact pursue with a view to seeking assistance within the fourteen days after the primary Judge published his reasons for decision. In any event, it has been said that financial constraints alone are "not an acceptable explanation": SZMNO v Minister for Immigration and Citizenship [2009] FCA 797 at [24] to [26] per Barker J.
An extension of time, it should be noted, may be refused even in those circumstances where an extension occasions no prejudice to the Respondent Minister: AZAEY v Minister for Immigration and Border Protection [2015] FCAFC 193 at [11], (2015) 238 FCR 341 at 344 per North, Besanko and Flick JJ.
14 The application for leave to appeal is required because the application to the Federal Circuit Court was dismissed pursuant to r 44.12(1)(a) of that Court's Rules and such a decision is an interlocutory decision: Federal Circuit Court Rules r 44.12(2). It is s 24(1A) of the Federal Court of Australia Act 1976 (Cth) which imposes the requirement for leave to appeal from such a decision: MZZLM v Minister for Immigration and Border Protection [2014] FCA 570 at [2] per Pagone J.
15 Even if an extension of time were to be granted, the application for leave to appeal would have nevertheless been refused because:
proposed Ground 1 discloses no self-evident failure on the part of the primary Judge to consider the Grounds of Review relied upon;
proposed Ground 2 fails to identify any appellable error said to have been committed by the primary Judge and is no more than an impermissible invitation for this Court to shun the shackles of identifying appellable error and to further shun the shackles confronting the Federal Circuit Court in its search for jurisdictional error and not factual error;
proposed Ground 3 is nothing more than a statement of a fear expressed by the Applicant, a fear that was in any event considered by the Administrative Appeals Tribunal; and
proposed Ground 4 fails to identify any way in which the primary Judge is said to have failed to "consider … [the Applicant's] fears and persecution" and, in any event, misstates the function of the Federal Circuit Court, the function of that Court being to scrutinise the findings made by the Tribunal with a view to detecting any legal error.
The reasons for decision of the primary Judge (it should be noted) briefly - but adequately - address the written "submissions" which had been annexed to the Application as filed: [2018] FCCA 294 at [21] to [31]. To the extent that proposed Ground 1 seeks to contend that the primary Judge "failed to Consider [the Applicant's] explanation for [her] appeal", that proposed Ground is denied by the consideration in fact given by the primary Judge to the "submissions".
16 It is the Applicant who bears the onus of persuading the Court that leave to appeal should be granted: MZZLM v Minister for Immigration and Border Protection [2014] FCA 570 at [6] per Pagone J. On the facts of the present case, that onus has not been discharged and the application for leave to appeal would accordingly have been refused because the draft Grounds of Appeal expose no real prospects of success: SZQCZ v Minister for Immigration and Citizenship [2012] FCA 91 at [23] per Murphy J. Expressed differently, the decision of the primary Judge is not attendant with "sufficient doubt" to warrant the grant of leave: cf. Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 to 399 per Sheppard, Burchett and Heerey JJ.
17 Inevitably in most litigation, one party may be satisfied with the outcome; the other party may well be dissatisfied. Although any litigant is entitled to pursue any sustainable "further review", no litigant is entitled to pursue litigation simply because of dissatisfaction with a decision made.
18 Even if an extension of time had been granted, any appeal would have been futile because the Draft Notice of Appeal fails to identify any arguable Ground of Appeal.