SZCDR v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application for an extension of time to file and serve a notice of appeal from a decision of Lloyd-Jones FM given on 14 April 2005. In that decision, Lloyd-Jones FM summarily dismissed the applicant's application for judicial review of the decision of the Refugee Review Tribunal ('the RRT') upon the basis that no reasonable cause of action was disclosed. In the Federal Magistrate's reasons for judgment he appears to have acted pursuant to rule 13.10(c) of the Federal Magistrates Court Rules but it is reasonably clear that the intended reference was to rule 13.10(a). That decision was interlocutory in character, hence leave to appeal from it is required as is an extension of time within which to seek leave to appeal. The delay involved is brief, non-prejudicial to the respondent and in my view satisfactorily explained by the applicant's affidavit of 11 May 2005. 2 It cannot be said, in my view, that it would be futile to extend the time within which to make an application for leave to appeal or that it would be futile to grant leave to appeal because I have serious reservations as to whether this was a case which was appropriate for summary dismissal for failure to disclose a reasonable cause of action. It may be that the case is a weak one. It may be that it should fail for other reasons but it seems to me to be at least arguable that the Federal Magistrate made an error in summarily dismissing the claim on the ground assigned when the applicant had asserted and particularised a case of bad faith which, if established, would result in a finding of jurisdictional error. 3 Further, in par 25 of his reasons for decision, the Federal Magistrate appears to have applied some test other than the General Steel test in summarily dismissing the claim: General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 124 ('General Steel'). His Honour says that there is nothing to indicate that the applicant could succeed in a final hearing if he were permitted to proceed on what his Honour called the amended pleadings whereas the General Steel test is pitched more highly than this. I think that the applicant has established an arguable case and that the appropriate course is to grant leave to the applicant to appeal from the judgment of the Federal Magistrate given on 14 April 2005. The orders which I make are that: (1) Leave be granted to the applicant to appeal from the decision of Lloyd-Jones FM given on 14 April 2005. (2) The applicant be granted the extension of time necessary to give effect to order 1. (3) The applicant file and serve a notice of appeal within 21 days of the date of the making of these orders. (4) The costs of this application be costs in the appeal. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.