SZENY v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The applicants are husband and wife and their child. They are citizens of Malaysia. They arrived in Australia on 26 March 2004. On 10 May 2004 they lodged applications for protection (class XA) visas under the Migration Act 1958 (Cth) ('the Act'). On 13 May 2004, a delegate of the respondent, the Minister for Immigration & Multicultural and Indigenous Affairs ('the Minister'), refused to grant protection visas. On 10 June 2004, the applicants applied to the Refugee Review Tribunal ('the Tribunal') for review of that decision. On 25 August 2004, the Tribunal affirmed the decision not to grant protection visas. That decision was notified to the applicants on 21 September 2004. 2 On 11 October 2004, the applicants commenced a proceeding in the Federal Magistrates Court seeking constitutional write relief under section 39B of the Judiciary Act 1903 (Cth) in respect of the Tribunal's decision. An amended application was filed on 31 January 2005. On 27 July 2005, Smith FM ordered that the application be dismissed with costs. His Honour gave reasons on that day and the applicants were present in person when the reasons were given. The reasons were transcribed and were made available in writing to the applicants shortly after 5 August 2005. 3 On 23 August 2005, the applicants applied for an extension of time to file and serve a notice of appeal from the orders of Smith FM. The first applicant has appeared without the assistance of any legal representation and speaks on behalf of his wife and child. The application for protection visas was based on the position of the first applicant. Under Order 52 rule 15(2) of the Federal Court Rules, a judge of the court may, for special reasons, give leave to file and serve a notice of appeal out of time. Any such application is to be accompanied by an affidavit showing the nature of the case, the questions involved and the reasons why leave should be given. 4 The considerations to which the court must give attention in considering an application for an extension of time include the length of delay involved in filing the notice of appeal, whether the respondent will suffer any prejudice by reason of the delay and the nature of the injustice if the applicant is denied the right to appeal. 5 The delay in this case is not extensive and the applicant has filed a brief affidavit saying simply that his application is out of time because he does not know of the prescribed time limit to file the appeal. As previously mentioned, the applicants are unrepresented. The applicant said from the bar table that he was told by a friend who helped him prepare the application that he had 28 days within which to file a notice of appeal. 6 However, even though the delay is slight there are costs involved in permitting the prosecution of an appeal that has no prospects of success. While the costs of such an appeal will be minuscule in relation to the affairs of the Commonwealth, they are nevertheless an expense that must be borne in mind. 7 Having regard to the shortness of the delay, if there is any prospect of success in the appeal I would be disposed to extend time. However, I am not persuaded that even an arguable case of jurisdictional error is demonstrated. Smith FM gave comprehensive reasons for dismissing the application on the basis that his Honour could find no jurisdictional error in the decision of the Tribunal. Specifically, his Honour observed that his reading of the reasons of the Tribunal did not enable him to identify any failure to address any claim put to it by the applicants, nor any error in its reasoning materially affecting its conclusions that could constitute jurisdictional error. 8 Smith FM observed that the application filed by the applicants contained a litany of grounds of judicial review without particulars relating them to the decision of the Tribunal. His Honour made findings as follows: · The Tribunal attempted to perform its statutory function to review the delegate's decision. · Submissions addressing bad faith identified no ground of jurisdictional error. · The Tribunal addressed all of the applicant's claims and its assessment was a matter of law open to it and revealed no jurisdictional error. 9 To the extent that the first applicant claimed that the Tribunal should have investigated his claims further, Smith FM considered that there were authorities to the contrary. The Tribunal's identification and assessment of the applicants' claims concerning discrimination in the obtaining of eduction in Malaysia and the avenues open to the applicant in the education of the child applicant did not, in his Honour's view, reveal any ground of jurisdictional error. His Honour ultimately concluded that the decision of the Tribunal was a privative clause decision within the meaning of s 474 of the Act. Therefore any review by a court is precluded. 10 In the draft notice of appeal, filed with the application for extension of time, three grounds are stated: (1) The Federal Magistrates Court failed to find error of law, jurisdictional error, procedural fairness and relief under section 39B of the Judiciary Act. (2) Federal Court case SZFKL v The Minister [2005] FCA 931 to the Tribunal being joined as a party to the proceedings. (3) SAAP v MIMIA [2005] HCA 18 May 2005. No particulars have been furnished. 11 When I asked the applicant what the basis of his claim before this court would be, he was unable to formulate any ground upon which it could be said that the Federal Magistrates Court erred. His only complaint was that the Tribunal did not deal with the country information properly. He also said that he wanted time to get further information, in order to prove his case. That of course is not a course that would be open to him even if time were extended. 12 The grounds as they stand could not succeed on appeal. The applicant was not able to give me any indication that he would be able, in the future, to formulate any grounds that had any prospects of success. 13 In all of the circumstances there appears to me to be no utility in extending the time to file and serve a notice of appeal. The notice of appeal that is attached to the applicant's affidavit could not succeed. Accordingly, I propose to dismiss the application. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.