SQDB v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicant and his family have applied for leave to file out of time a Notice of Appeal from the decision of Mansfield J given on 14 November 2003. The last day for filing that Notice of Appeal in accordance with the Rules was 5 December 2003. The application for an extension of time was filed on 12 December 2003 - seven days later. Notwithstanding the short period of the delay, the applicant has not been able to identify any arguable basis for an appeal if leave were given. For the reasons given below, the application is dismissed. 2 The applicant and his family arrived in Australia on 28 August 2001. He and his daughter applied to the respondent ("the Minister") for protection visas; his wife and other daughter applied for visas as family members. A delegate of the Minister and, subsequently, the Refugee Review Tribunal, refused to grant those visas. The applicant and his family instituted proceedings in this Court seeking prohibition, certiorari and mandamus in relation to the decision of the Tribunal. Those proceedings were dismissed by order of the primary Judge made on 14 November 2004. His reasons are contained in SQDB v Minister for Immigration & Indigenous Affairs [2003] FCA 1327. As is clear from those reasons there was only one ground of jurisdictional error argued before the primary Judge. That was that the Tribunal had taken into account an irrelevant consideration, namely that the applicant had returned to Sri Lanka, his country of citizenship, on four occasions during a period when the applicant, on his own case, was at significant risk of harm on the basis of his Tamil ethnicity. Not surprisingly the primary Judge dismissed the application on the basis that the evidence was not irrelevant to the determination of whether the applicant had a "well founded fear of persecution" and that the question of what weight it should be given was a matter within the jurisdiction of the Tribunal. 3 Under Order 52 Rule 15 of the Federal Court Rules the applicant was required to file any notice of appeal within 21 days after 14 November 2004. On 12 December 2003 the applicant filed in this Court an application for an extension of time in which to file and serve his notice of appeal. Taking account of part days, this would seem to be some seven days after the date that any Notice of Appeal should have been filed and served. 4 The power to grant an extension of time is a flexible power. There are at least three issues requiring consideration and, perhaps, balancing. The first is the adequacy of the reasons given to explain the delay; the second is the possible prejudice that may be suffered by the respondent and the third is whether the proposed grounds of appeal disclose an arguable case: see Eloujenko v Minister for Immigration & Multicultural Affairs [2001] FCA 1791 at [6]. 5 In this case it is conceded that the Minister has not been prejudiced by the delay. 6 The applicant has filed an affidavit explaining the delay and has expanded upon that in his oral submissions. He says that he was informed on or about 17 November 2003 by his then solicitor, Mr Clisby, that his application for judicial review had been dismissed. However, he says that he did not then seek to appeal because he was waiting for Mr Clisby to send a copy of the primary Judge's reasons. He says that he did not receive a copy of those reasons until 7 December 2003. (I note that that day was a Sunday). He also says that he understood that the time for instituting an appeal was 28 days, not 21 days. He also says that he has had difficulty obtaining legal advice as to the basis for his appeal. The Minister says that these reasons are not a sufficient answer in the circumstances of this case. It will be necessary to return to the Minister's argument in this regard after some consideration of the grounds upon which the applicant seeks to appeal. 7 Annexed to the applicant's affidavit is a Draft Notice of Appeal which sets out the grounds of appeal that the applicant would seek to argue if leave to file and serve the Notice of Appeal is given. There are two proposed grounds of appeal. The first is that the Court erred in failing to hold that the respondent had not complied with the provisions of s 424A of the Migration Act 1958 (Cth) ("the Act"). That section requires that the Tribunal give certain information to an applicant for review. It is not a code for this purpose and is in addition to the "usual" requirements for procedural fairness which are implicit in the Act: see Waej v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188 at [36]. It was not argued before the primary Judge that this section had been transgressed, or even that there had been some other breach of the rules of procedural fairness by the Tribunal. The applicant was not able to explain to me in what way he said that the section had been breached. He was not able to identify what material the Tribunal had relied upon that had not been put to him in the course of the hearing by the Tribunal. 8 The other proposed ground of appeal is that the primary Judge erred in failing to hold that the respondent had not complied with the provisions of s 430A of the Act. That section requires the Tribunal to invite the parties to be present when the decision is handed down. Even assuming that failure to comply with that obligation constitutes a "jurisdictional error" it was not one which was argued before the primary Judge. More fundamentally, the materials that were before the primary Judge show that the Tribunal wrote to the applicant on 30 April 2003 inviting him to be present for the handing down of the Tribunal's decision on 20 May 2003. The applicant acknowledged that he had received that letter. 9 During his oral argument the applicant also said that he wished to appeal because the Tribunal had "pre-judged" the matter. He said that this was evidenced by the failure of the Tribunal to ask him any questions. This was also not a matter raised before the primary Judge. The materials that were before the primary Judge provide no support for this argument. In particular, the reasons of the Tribunal set out in some detail the claims made by the applicant and his family and the material provided by them in support of those claims. 10 As the Minister submitted, the fact that the proposed grounds of appeal bear no relationship whatsoever to the reasons of the primary Judge or to the matters argued before him means that any delay in instituting an appeal within time cannot be justified on the basis that the applicant needed to wait to see the primary Judge's reasons before seeking to appeal. Nevertheless, as the applicant is unrepresented and as the delay was short and the Minister was not prejudiced I would have been disposed to give an extension of time if the applicant had any arguable basis for an appeal. 11 However, in my view the proposed grounds of appeal are not arguable. It would be futile for this matter to proceed further. 12 The applicant also asked that leave be given to him to file the Notice of Appeal so as to enable him to obtain legal advice to identify more appropriate appeal grounds. However, it is now nearly four months since the primary Judge delivered his decision and nearly three months since the applicant received a copy of the reasons. There is no material before me which would suggest that the applicant has made any real attempt to obtain legal advice during that period. Nor is there any material before me to suggest that any legal advice might identify some arguable ground of appeal. It would certainly not be appropriate to give leave to file the Notice of Appeal so as to give the applicant the opportunity to obtain the legal advice he should have obtained months ago. In the circumstances it is not even appropriate that this application be adjourned for that purpose. 13 The application for an extension of time to file and serve the Notice of Appeal is refused. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.