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[2004] FCA 1728
Federal Court of Australia
2004-12-20
Branson J, Jacobson J
Original judgment source is linked above.
Introduction 1. This is an application for leave to appeal and for an extension of time to seek leave to appeal against the orders and judgment of Federal Magistrate Baumann dated 8 September 2004. On that date the learned Magistrate upheld the respondent's notice of objection to competency which was made pursuant to section 477(1A) of the Migration Act 1958 ("the Act") on the ground that the application was not filed within 28 days of the notification of the decision of the Refugee Review Tribunal ("the RRT") and dismissed the application for judicial review of the RRT's decision. 2. The applicant filed the present application on 24 November 2004, approximately eight weeks after the time provided for under the Federal Court Rules. The applicable rule is Order 52, Rule 5. 3. The applicant must establish special reasons for an extension of time to seek leave to appeal against the decision. In Jess v Scott (1986) 12 FCR 187 at 195, a Full Court stated that what is necessary to satisfy the test is to demonstrate circumstances which justify the departure from the general rule. In the particular case the ground must be such as to take the case out of the ordinary. 4. One of the most important factors in the exercise of the discretion is whether there is any prima facie strength to the proposed ground of appeal; see Howard v Australian Electoral Commission [2000] FCA 1767 per Branson J at [7]. 5. I will set out briefly the background in this matter and the reasons for the RRT and the Federal Magistrate, before turning to the present application.
Background 6. The applicant is a citizen of Bangladesh. He arrived in Australia on 2 September 1999 and applied for a protection visa on 1 October 1999 on the ground that he had a well founded fear of persecution by reason of his political opinions as a prominent member of the Freedom Party ("the FP"). A delegate of the Minister refused to grant the applicant a protection visa. In a decision of the RRT handed down on 6 June 2000, the RRT affirmed the decision of the delegate. The RRT set out in some detail the applicant's claims and it is unnecessary to set out the claims in any detail. 7. The RRT found that the applicant's evidence lacked credibility. It observed that independent evidence was to the contrary of much of the information given by the applicant at the hearing. It said that when this was put to the applicant, he had a tendency to alter his evidence when challenged and that this added to the RRT's view that the claims lacked credibility. 8. The RRT gave a number of examples of instances where it found that the applicant was making up "claims on the run" and was satisfied that the applicant was cognisant of what he was saying at the outset and had not misunderstood a question or unknowingly led the Tribunal to misunderstand his answers. For these reasons the RRT was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. 9. Approximately four years later, on 24 May 2004, the applicant who was then in detention filed a notice of appeal against the decision of the RRT in the Federal Magistrate's Court. In his decision of 8 September 2004, Federal Magistrate Baumann noted that the application was in general terms, that it included an allegation that the RRT made its decision in bad faith, that the Act was not properly observed, and that the application stated that "I will provide more details later". 10. The learned Federal Magistrate observed that despite directions made by the court that the applicant file and serve an amended application supported by an affidavit, the applicant had failed to do so and that no written submissions were provided. The learned Magistrate also observed that at the hearing the applicant sought an adjournment as the "person who helped him complete the application is no longer in Australia and has not returned". 11. The Magistrate was satisfied that the applicant had every reasonable opportunity to make attempts to get assistance to expand his grounds for the application if he wished to do so and he did not consider it appropriate to grant the adjournment especially considering the length of time which had elapsed since the RRT decision. 12. The Magistrate considered the claims stated in the application and at [10] found that:- "Whilst the applicant may not have sufficient expertise to identify jurisdictional error on the information available to the court, I have formed the view that the findings of fact and conclusions reached by the Tribunal on the applicant's claims were abundantly open to the member on the evidence available to her." 13. The Magistrate noted that the claims made by the applicant were not particularised and none of the alleged errors of law were particularised as required. 14. The Magistrate also emphasised that it was not open to the court to review the merits of the RRTs decision and that the decision turned on issues of credibility. He made reference to the decision of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex Parte Durairajasingham (2000) 168 ALR 407 in which his Honour said that this was a function of the primary decision maker "par excellence". The learned Magistrate found that the applicant had not established any jurisdictional error in the decision of the RRT.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.
Counsel for the Applicant: The Applicant appeared in person
Solicitor for the Respondent: Australian Government Solicitor
SZDQF
Minister for Immigration and Multicultural and Indigenous Affairs