SZDLV v Minister for Immigration and Multicultural and Indigenous Affairs

4 The power of a judge of the High Court to grant the equivalent dispensation from the rules of that Court was considered in Gallo v Dawson (No 2) (1992) 109 ALR 319, where at 480 the Court endorsed the following statement of principle enunciated by McHugh J at first instance: 'The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties…This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for an extension of time…When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal…' (My emphasis appears in non-italics).

5 The language of the Full Court in Jess v Scott in identifying grounds that 'justify a departure from the general rule in the particular case' emphasised the broad nature of the discretion here similarly to be exercised. Nevertheless the prospects of success of the contemplated appeal is an important and often determinative factor in reaching the decision to enlarge or to refuse to enlarge time under O 52 r 15(2). It is also necessary to have regard to the applicant's stated reasons for his or her delay in seeking to lodge an appeal.

The applicant's explanation for his delay in filing the notice of appeal 6 The applicant read two affidavits in support of his application, the first sworn 10 August 2005 and the second on 15 September 2005. In the former affidavit the applicant provided the following explanation for his failure to comply with O 52 r 15(1): 'My application is out of time because I do not understand the date of judgment, in the judgment show that my hearing date is 26 November 2005. I receive the copy of judgment 5 August 2005 by mail. I was misguided by the hearing date of 26 November 2005. I am unrepresented. No one assisting me in this matter.' The cover page of the Federal Magistrate's reasons for judgment originally stated that the hearing date was '26 November 2005'. This was altered by a corrigendum issued on 10 August 2005 to read '26 November 2004'. The applicant provided evidence under oath during the first day of hearing to the effect that this typographical error somehow confused him into thinking that he was not required to file a notice of appeal until some later time. I observe that in his second affidavit, the applicant attested to having attended a hearing before the Federal Magistrates Court on 26 November 2004, which indicates that the applicant was at least in a position to recognise the error that had been committed.

7 More significant to the outcome of this application however is the evidence provided by the applicant in chief and under cross-examination about several letters concerning the handing down of the Federal Magistrate's reasons for judgment and the entry of his Honour's orders. Those letters, in chronological order, were as follows: s Letter dated 28 June 2005 from Associate to Nicholls FM addressed to the applicant at an address in Mascot informing the applicant that judgment would be handed down on 4 July 2005 and requesting his attendance at court at that time; s Letter dated 4 July 2005 from Associate to Nicholls FM addressed to the applicant at the same address in Mascot enclosing a copy of his Honour's reasons for judgment; s Letter dated 12 July 2005 from solicitor for the Minister again addressed to the applicant at that same address in Mascot enclosing a sealed copy of the final orders made by Nicholls FM disposing of his application for review and ordering the applicant to pay the Minister's costs. The letter explained to the applicant how to pay those costs. 8 On the first day of the hearing, I asked the applicant whether he received the letter dated 28 June 2005, informing him of the handing down of judgment. The applicant replied that he had received a copy of that letter 'but late'. When asked to specify a precise date of receipt, the applicant indicated that he did not receive the letter until 10 or 11 August 2005. I observe that a date of 5 August 2005 for receipt of that letter was contained in the applicant's first affidavit. The applicant was also asked if the Mascot address was his correct address at that time. The applicant answered in the affirmative. 9 I then referred the applicant to the third letter, that dated 12 July 2005 from the Minister's solicitor which contained a sealed copy of Nicholls FM's orders. The applicant indicated that he received that letter on or around 12 July 2005. When I asked the applicant why he had not then attempted to lodge an appeal from the Federal Magistrate's judgment, the applicant testified as to being confused about the erroneous hearing date which was provided on the originally published reasons for judgment of the Federal Magistrate. I would infer from that evidence that by 12 July 2005, or some short time after, the applicant must have received the second letter referred to above, that being the letter dated 4 July 2005 enclosing a copy of his Honour's reasons for judgment. 10 On the second day of the hearing the Minister's solicitor cross-examined the applicant on those same letters. The applicant, who again testified under oath, identified the Mascot address as having been his address for service at all relevant stages of the appeal process. The applicant again stated that he had received the letter dated 28 June 2005 'but late', he also attested to having received the other two letters as well. The applicant did not have anything to say in reply to those questions other than to make submissions on why he feared harm upon his return to Bangladesh. 11 Even if I were to accept the applicant's evidence that he had received the letter notifying him of the handing down of judgment more than one month after it was sent, there remains evidence to the effect that the applicant was notified of the Federal Magistrate's judgment against him by means of the other two letters, dated respectively 4 July 2005 and 12 July 2005. I have not found the applicant's evidence as to confusion by the incorrectly spelled date of hearing on the original copy of his Honour's reasons for judgment to be in the least persuasive. On the face of the evidence presently before me, I am unable to accept that the applicant has any valid excuse to explain his delay in lodging an appeal from the Federal Magistrate's judgment.

The prospects of success of the contemplated appeal 12 Annexed to the applicant's first affidavit dated 10 August 2005 is a draft notice of appeal which is in a similar form to that frequently advanced by appellants in refugee law context. It refers to various decisions of the High Court and the Federal Court, including Muin v Refugee Review Tribunal' Lie v Refugee Review Tribunal [2002] HCA 30, Plaintiff S157/2002 v Commonwealth [2003] HCA 1, SAAP v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24 and SZFKL v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 931. None of those decisions bear remotely on the issues raised before the Federal Magistrate, such as they were. 13 In his second affidavit sworn 15 September 2005, the applicant deposed that if granted the enlargement of time sought, he would file and serve a notice of appeal with the following grounds: '1. His Honour erred in not finding that the Tribunal denied the appellant procedural fairness by refusing the appellant additional time to submit documents supporting the appellant's claims. 2. His Honour erred in not finding that the decision of the Tribunal is affected by jurisdictional error as the Tribunal misconstrued the definition of "refugee" in Article 1A(2) of the Convention.' 14 In support of that first ground, the applicant sought to rely upon a document translated from the Bengali language into English, which purported to be a document from the 'First Class Magistrate Court Amoli'. That document appears to refer to a warrant of arrest made out against the applicant and the possession of arms of some sort. The applicant claimed in his second affidavit that he had only obtained the original documents in the Bengali language from his friend in Bangladesh in early 2001, in spite of that document bearing the date (in the translated version of it which was also produced) of 7 January 1999. The applicant deposed to having been refused by the Federal Magistrate of his application to adduce those documents into evidence at first instance. No reference to such attempt is contained in his Honour's reasons for judgment, in spite of a lengthy portion of that judgment being concerned with the applicant's arguments in respect of a further series of documents that his advisor had sent to the Tribunal after the Tribunal hearing, and which were recorded in the Tribunal's reasons. The applicant did not adduce evidence of the transcript of the hearing before the Federal Magistrate in support of his evidence. 15 The Minister objected to the translation of the Bengali document being admitted into evidence on numerous grounds. The document upon which the translation was based was not placed in evidence before the Tribunal, even though the original document predated the applicant's hearing before the Tribunal by a year. Moreover the applicant made no attempt to adduce the translated document into evidence before the Federal Magistrate, although the hearing of the applicant's case in the Federal Magistrates Court took place some years after the date recorded on the face of the translated document. Insofar as the tender of the translated document sought to prove that false prosecutions were brought against the applicant in Bangladesh before he left that country, I observe that such a claim was dealt with in great detail by the Tribunal in its reasons for decision. I also observe from the Tribunal's reasons that although it refused to accept further documents from the applicant after the hearing, though not the document with which I am now concerned, the Tribunal nevertheless reached the conclusions that it did in the context of and contrary to the applicant's claims. The Tribunal's conclusion (at page 109 of the court book) was that the applicant's claims to be a high ranking member of the BNP, and to have suffered at the hands of his opponents in the Awami League (including by way of false prosecutions), 'were concocted…to enhance his claim to refugee status'. 16 In any event, as his Honour found in respect of this same ground of review pursued by the applicant before him, any consideration of further evidence can be relevant only to the merits of the Tribunal's decision, with which I am not presently concerned. Finally, the Federal Magistrate reached the conclusion that the Tribunal had fulfilled its obligations to afford the applicant a hearing of his attempted review of the delegate's decision. Even though it was not obliged to accept further material from the applicant, once the hearing had completed (no such material was invited by the Tribunal and was indeed explicitly refused), it nevertheless took such material into account in reaching its decision. 17 The second ground referred to in the applicant's affidavit was similarly argued before the Federal Magistrate. I have read and considered the detailed reasons of both the Tribunal and the Federal Magistrate. I agree with his Honour that the Tribunal found that the applicant's claims lacked credibility, and that those findings were reasonably open to it. I also agree with his Honour's characterisation of the Tribunal's decision. The Tribunal was not required to consider claims that were not placed before it by the applicant. Having found that the applicant was not a high ranking member of the BNP and accordingly that the applicant did not have a 'real chance' of being the subject of politically incited violence upon his return to Bangladesh, there was no obligation on the Tribunal to proceed further to consider the hypothetical risks that may be posed to low-ranking members of opposition parties who are engaged in particular types of political protest, in the absence of claims by the applicant that he would act in a certain way upon his return to Bangladesh, and that such activity on his part would incur persecutory actions. 18 In any event, for the reasons that I have already given, I am not satisfied that the applicant has provided an adequate explanation of why he was so late in seeking to bring this appeal. In circumstances where the prospects of success of the contemplated appeal are so slight so as to be virtually non-existent, there is even less chance of an applicant establishing the necessary 'special reasons' referred to by the Court in Jess v Scott. 19 Accordingly the application is dismissed and I order the applicant to pay the Minister's costs assessed at $1500. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Associate: Dated: 20 October 2005 The applicant appeared in person

Solicitor for the Respondent: Australian Government Solicitor

Dates of Hearing: 31 August and 20 September 2005

Date of Judgment: 20 September 2005