SZGDS v Minister for Immigration and Multicultural Affairs

BACKGROUND 5 The applicants are husband and wife. They arrived in Australia from Egypt on 25 June 1997. On 2 October 1998 the applicants lodged applications for protection visas with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ('the Act'). In his application for a visa, the husband claimed that he had been harassed and subjected to violence by members of an extremist Islamic group. On 29 October 1998 a delegate of the first respondent refused a protection visa to the applicants and on 23 November 1998 the applicants applied for a review of that decision. 6 The Tribunal's decision to refuse a protection visa was based primarily on two reasons. Firstly, it said that there were numerous discrepancies in the evidence of the applicants and it did not accept that the applicants' claims were credible. Secondly, it noted that evidence before the Tribunal suggested that the authorities would provide effective protection to the applicants against any serious harm they might face. 7 On 16 February 2001 the applicants joined in proceedings in the High Court known as the Lie class action(see Muin v Refugee Review Tribunal & Ors (S36 of 1999) (2002) 190 ALR 601). Pursuant to orders made by the High Court, the applicants filed a draft order nisi in the High Court, which was subsequently remitted to the Federal Court. On 23 April 2004 the applicants filed a notice of discontinuance in relation to the order nisi proceedings. Over a year later, on 27 April 2005, the applicants filed an application in the Federal Magistrates Court of Australia for judicial review of the decision of the Tribunal. 8 On 15 May 2006 Nicholls FM dismissed the applicants' application with costs. In his decision, Nicholls FM accepted the submissions of the applicants that the Tribunal had breached s 424A of the Migration Act in respect of two pieces of information, being the name of the organisation which had been harassing him, and the absence of a reference to a suitcase containing gold and arms in his initial application. In respect of each of these findings, the Tribunal relied in part upon the discrepancies between the husband's original statement to the Department and his statements at the Tribunal hearing, and made adverse findings on the husband's credibility. Nicholls FM accepted that, in respect of each of these matters, the Tribunal was obliged under s 424A(1) to provide written notification to the husband that it intended to rely upon the statements to the Department, and give the husband an opportunity to comment. Accordingly, Nicholls FM accepted that the Tribunal had fallen into jurisdictional error in this respect. 9 However, Nicholls FM went on to consider the remainder of the Tribunal's decision. His Honour concluded that there was a separate and independent line of reasoning adopted by the Tribunal on which its decision was also based, namely, that the evidence suggested that the husband would be able to access effective State protection in Egypt. Accordingly, Nicholls FM considered that the Tribunal's decision could be sustained on an unimpeachable basis which was separate and independent to the part of the decision which contained the error. 10 Nicholls FM also considered the issue of unwarrantable delay. The respondent submitted to the Federal Magistrates Court that it should decline to grant relief to the applicants in any event, because the period of a year between the termination of the order nisi proceedings and the institution of the Federal Magistrates Court proceedings amounted to an unwarrantable delay. The applicants' submitted that the delay was due to the negligence of their former solicitor. Nicholls FM did not consider that the applicants had provided sufficient evidence to explain the delay, and in particular noted that no evidence had been brought to corroborate the allegations made against the former solicitor. Accordingly, his Honour considered that even if the decision had been liable to be overturned because of jurisdictional error, he would have declined to grant relief for reason of unwarrantable delay.

Findings 12 Order 52 r 15(1) of the Federal Court Rules provides that a notice of appeal to this Court must be filed and served within 21 days of the date on which the judgment appealed from was pronounced. However, O 52 r 15(2) provides: '(2) 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.' 13 In Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894 Finkelstein J identified three considerations for the Court in an application for an extension of time in which to file an appeal: firstly, the extent of the delay involved; secondly, any prejudice to the respondent occasioned by the delay; and thirdly, whether the applicant would suffer a serious injustice if the right to appeal were denied (see at [9] of his Honour's judgment). 14 The first respondent submitted that the expenses associated with the appeal constitute prejudice which will accrue to it if the extension of time is granted. However, the legal costs of the appeal are not a matter which has arisen specifically because of the appeal being filed out of time; rather, these are costs which the Commonwealth would have incurred equally if the application had been filed within time. In my opinion, the prejudice to be considered in an application for an extension of time is only that prejudice which results by reason of the failure to file the appeal in time. Accordingly I do not consider that the costs of the appeal can amount to prejudice for the purposes of this application. In view of the shortness of the delay in this case, I do not consider that there is any relevant prejudice to the first respondent. 15 The first respondent also submitted that the applicants have provided insufficient reasons for the delay. I accept that the evidence provided by the husband relating to his sickness is relatively scant. Nonetheless, the husband has provided evidence in his affidavit that he was sick for a week during the appeal period, and has provided a certificate, if somewhat vague, from a medical practitioner confirming the illness. For the purposes of this application, I am willing to accept that the husband was sick during the appeal period, which prevented him from giving instructions to his solicitor to file an appeal. In view of the fact that the appeal was filed only three days out of time, I consider this is sufficient explanation for the delay. In my opinion, it constitutes a special reason for granting leave to appeal. 16 The first respondent observes that there is no explanation provided why the wife did not give instructions to the solicitor to file an appeal. The wife also has provided an affidavit, which says that it was her husband who usually communicated with the solicitor, and further that she was required to take care of their three young children and was unable to contact the solicitor. I accept that it was not the usual practice for the wife to communicate with the solicitor and that she had care of three young children as well as a sick husband. In these circumstances, I do not consider it unreasonable for her to have failed to give instructions to the solicitor to lodge an appeal, especially as she may not have been able to discuss the matter properly with her husband because of his illness. In these circumstances, I am satisfied that the explanation for the delay, being only three days, can be explained sufficiently for the purposes of this application. 17 Accordingly, I will turn to consider the third factor, namely the merits of the appeal. In WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399, the Full Court of the Federal Court said at [9]: 'An extension of time within which to file an appeal will not be granted without a consideration of the putative appellant's prospects of successfully prosecuting his appeal …' 18 The first respondent submitted that the draft amended notice of appeal does not have any merit. Unfortunately, the submissions of the solicitor for the applicants in relation to this matter were largely unhelpful. 19 Since Nicholls FM found that the application should be dismissed on two separate grounds, the applicants must succeed on both in order to be successful. Nonetheless, having considered the draft Notice of Appeal, it is evident that the applicants make challenges to both of the grounds which formed the basis for Nicholls FM's judgment. Further, the applicants raise grounds of procedural fairness relating to the proceedings in the Federal Magistrates Court. Having considered the grounds raised, I do not consider that the case can be described as having no prospect of success. I accept that the grounds raised, at least on the basis of the evidence currently available to the Court, do not suggest a probable error in his Honour's reasons. However bearing in mind that the Court in an application for extension of time should not delve too deeply into the merits, I do not consider that the appeal can be described as 'foredoomed to fail'. 20 Overall, I do not consider that the appeal is so entirely devoid of merit that it should be prevented from being heard, in circumstances where there is no relevant prejudice to the first respondent and the delay involved is very short. In making this finding, I note the observations of the Full Court in WAAD at [7] that: '… where the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted.' 21 Accordingly, I will grant an extension of time in which to file an appeal to the applicants and grant leave to rely upon the amended notice of appeal. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

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