SZDNL v Minister for Immigration and Citizenship

HIGH COURT OF AUSTRALIA PROCEEDINGS 6 The applicant sought to review the decision of the Tribunal by filing a draft order nisi in the High Court of Australia on 3 March 2003. On 21 May 2003 the applicant discontinued the proceedings in the High Court.

APPLICATION FOR REVIEW BEFORE THE FEDERAL MAGISTRATE 7 The applicant then sought review of the Tribunal's decision in the Federal Magistrates Court of Australia. On 10 May 2004 the applicant filed an application seeking to challenge the Tribunal's decision on, inter alia, the basis that the Tribunal exceeded its jurisdiction, failed to properly investigate the applicant's claims and failed to perform its duty under s 425(1) of the Migration Act 1958 (Cth) ('the Act'). 8 On 27 May 2004 the first respondent filed a Notice of Objection to Competency which submitted that the decision of the Tribunal was a privative clause decision and that the application had not been commenced within the fixed time prescribed by s 477(1A) of the Act. 9 On 17 August 2004 the first respondent filed an application seeking the matter be dismissed pursuant to r 13.10(c) of the Federal Magistrates Court Rules 2001 as an abuse of process. On 29 November 2004 the interlocutory application filed by the first respondent was heard by Federal Magistrate Driver. 10 Although the applicant was absent from the hearing the Federal Magistrate had regard to a letter by the applicant dated 13 November 2004 and faxed to the Federal Registry on 28 November 2004 seeking an adjournment on the basis of medical grounds. The applicant attached a medical certificate provided by Dr Nabil Bchary dated 17 November 2004 which stated the applicant was suffering from viral gastro-enteritis and was unable to attend work or school from 27 November 2004 until 29 November 2004. At the hearing, Driver FM telephoned Dr Bchary. Dr Bchary informed his Honour of the procedures for the diagnosis and indicated that he was not aware that the applicant was due in court on 29 November 2004. However Dr Bchary considered the applicant was unfit to travel until he had recovered from symptoms which would have ameliorated by 30 November. 11 Driver FM found that Dr Bchary had issued the medical certificate in good faith. However in relation to the applicant's actions the Federal Magistrate was of the view that (at [8] - [9]): there is a strong risk that the applicant is malingering. I take into account that the applicant failed to attend the directions hearing on 17 August 2004 and that he apparently prepared his letter dated 13 November 2004, approximately two weeks before he attended Dr Bchary. This leads to a strong implication that the applicant hatched a plan to avoid attending court today by reason of illness and complained of symptoms sufficient to convince Dr Bchary that he was indeed ill.

I am, in the circumstances, not persuaded that the medical certificate issued by the doctor is sufficient justification for an adjournment of today's hearing. I will, therefore, refuse the adjournment application.

12 The Federal Magistrate attempted to telephone the applicant but his telephone was turned off. His Honour was not satisfied the applicant had provided a sufficient reason for his non-attendance at court. As the applicant had also failed to attend a directions hearing on 17 August 2004, in the circumstances his Honour dismissed the application pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001 for non-attendance. 13 In the hearing before Driver FM the first respondent sought an order that the applicant be prevented from filing a further judicial review application in respect of the same Tribunal decision except by leave. Driver FM noted that the applicant had commenced and discontinued earlier judicial review proceedings and that the applicant had failed to attend two hearings of his present judicial review application. In light of these two considerations his Honour granted such order.

APPLICATION FOR EXTENSION OF TIME TO FILE AND SERVE NOTICE OF APPEAL 14 Federal Magistrate Driver delivered his decision on 29 November 2004. Pursuant to O 52 r 15 of the Federal Court Rules any appeal from that decision ought to have been filed on or before 21 December 2004. As no appeal was filed by that date, under O 52 r 15(2) of the Federal Court Rules the applicant requires the leave of the Court in order to file and serve a Notice of Appeal. The subrule provides: Notwithstanding anything in the preceding subrule, the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal. 15 On 18 September 2007 the applicant filed an application for an extension of time to file and serve a Notice of Appeal.Although no draft Notice of Appeal was filed, the application was accompanied by an affidavit of the applicant sworn on 18 September 2007. The affidavit asserted the applicant was unable to obtain a pro bono barrister or Court appointed lawyer. The applicant also asserted that he had not been deliberately absent from the 29 November 2004 hearing before Driver FM. 16 On 21 January 2008 the first respondent filed a Notice of Objection to Competency. Such notice states that the Federal Magistrates Court dismissed the applicant's application to that court pursuant to r 13.03A(c) of the Federal Magistrates Court Rules 2001. Rule 13.03A(c) provides that the Court may dismiss the application if the applicant is absent from the proceedings. The notice also states that pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) no appeal lies to the Federal Court of Australia from an interlocutory judgment unless the Court or a Judge gives leave to appeal. No such leave has been sought.

APPLICANT'S SUBMISSIONS 17 The applicant filed written submissions in this Court on 18 February 2008. The applicant claims that he does not have sufficient funds to hire an interpreter to assist him in the elucidation of court procedure. The applicant also submits that Immigration Officers misled him and that he has as a consequence developed psychological problems including panic attacks. 18 In the written submissions the applicant provides reasons for his failure to attend the hearing of his judicial review application in the Federal Magistrates Court on 29 November 2004. The applicant submits that he could not attend the hearing because he had been unable to obtain pro bono counsel or a court appointed lawyer and because he had been ill on that day. Later in the written submissions the applicant further submits that he was absent from the hearing because 'I was in extreme fear of detention following a previous experience of being cheated by DIAC officials'. 19 The applicant's submissions challenge the Tribunal's finding that the applicant is 'a low political profile person'. The applicant submits that the Tribunal did not particularise its reasons for making such finding. The applicant also claims that the Tribunal did not give him 'any opportunity' to comment on its belief concerning his political profile in Bangladesh. As a result the Tribunal breached s 424A of the Act. 20 The applicant claims that he was not notified of the 'adverse information' which was ultimately used to refuse his protection claims. The applicant submits that in this regard he was denied natural justice. 21 The applicant submits that the Federal Magistrate 'did not take any of the process of the RRT hearing into account at all in the decision process'.

FINDINGS 22 The Court notes that the applicant must obtain the leave of this Court to appeal from the interlocutory judgment of the Federal Magistrate. Leave is also required pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) to file and serve a Notice of Appeal out of time. As such the applicant in this case must obtain the leave of the Court twice in order to proceed with any Notice of Appeal. No application has been made to this Court seeking leave to appeal from the interlocutory judgment of Driver FM. The application before this Court only concerns the applicant's application under O 52 r 15(2) of the Federal Court Rules to file and serve a Notice of Appeal out of time. In the absence of a grant of leave pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the current application, even if successful, will not assist the applicant. However the Court will nevertheless consider the grounds relied upon. 23 'Special reasons' must be shown to justify this Court granting an extension of time to the applicant pursuant to O 52 r 15(2) of the Federal Court Rules. Such words have been considered by the Full Court in Jess v Scott (1986) 12 FCR 187 where the Full Court said at 195: What is needed to justify an extension of time is indicated in r 15(2) by the words "for special reasons". It is that there be shown a special reason why the appeal should be permitted to proceed, though filed after the expiry of twenty-one days. In that context, the expression "special reasons" is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.

24 In considering whether 'special reasons' exist, the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Parker v The Queen [2002] FCAFC 133; Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344 at 348-349. 25 The Court finds that there has been no satisfactory explanation for the delay of almost three years in bringing the application. 26 Although '[t]he object of the rule is to give the court a discretion to extend the time with the view to the avoidance of an injustice' (Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 per McInerney J at 262-3, quoted by the Full Court with approval in Jess v Scott (1986) 70 ALR 185 at 191), the merits of the substantial application are determinative as to whether or not the Court's discretion will be exercised: 'should the applicant be unable to demonstrate any prospect of success in the appeal which he seeks to prosecute he would, for that reason, not be entitled to an extension of time, despite the other circumstances' (Jeffers v R [1993] 112 ALR 85 at 86). As such, the merits of the substantial application will be of vital significance in considering whether there exist 'special reasons'. As the applicant has not provided any draft Notice of Appeal, this Court will have regard to the applicant's written submissions in considering the merits of the substantial application. 27 The applicant challenges the factual and legal findings of the Tribunal. The appropriate forum for a challenge of any factual findings by the Tribunal is the Federal Magistrates Court. The applicant did not avail himself of the opportunity to challenge such findings. As to legal findings the applicant did not provide any particulars to substantiate his claims and this Court finds no apparent error of law in the Tribunal's decision. 28 The applicant submits that the Federal Magistrate 'did not take any of the process of the RRT hearing into account at all in the decision process'. This submission is unsupported by particulars. This Court finds that the Federal Magistrate was not required to review the processes of the Tribunal in view of the nature of the application before him, namely proceedings instituted by the first respondent for summary dismissal of the applicant's application. 29 The applicant's submissions relating to his lack of education and lack of representation could not constitute grounds of appeal and the Court can pay no regard to them. 30 Based upon the applicant's written submissions, the Court is satisfied that there is no merit in the applicant's substantial application. This finding, together with the absence of any acceptable explanation for the delay, leads the Court to conclude that there are no 'special reasons' which would justify the granting of leave to the applicant to file and serve a Notice of Appeal out of time pursuant to O 52 r 15(2) of the Federal Court Rules. Accordingly the application is dismissed. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Counsel for the Applicant: The Applicant appeared in person