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[2006] FCA 358
Federal Court of Australia
2006-03-29
Lindgren J
Original judgment source is linked above.
INTRODUCTION 1 The applicant seeks an extension of time in which to file and serve a notice of appeal from a judgment of Scarlett FM given in the Federal Magistrates Court of Australia ('FMCA') on 5 August 2005. On that date his Honour dismissed the applicant's application for review of a decision of the Refugee Review Tribunal ('the Tribunal'). The 21-day period for appeal to this Court expired on 26 August 2005: Federal Court Rules O 52 r 15(1). The applicant did not approach this Court until 22 February 2006, virtually six months out of time. The applicant must show 'special reasons' in order to obtain leave to file and serve a notice of appeal out of time: O 52 r 15(2).
background 2 On 19 November 2003, the applicant applied for a protection (Class XA) visa and on 25 November 2003 that application was refused by a delegate of the Minister. 3 On 31 December 2003, the applicant applied to the Tribunal for review of the delegate's decision. 4 On 17 March 2004, the applicant attended a hearing by the Tribunal and gave evidence. 5 On 30 March 2004, the Tribunal made its decision by which it affirmed the delegate's decision not to grant a protection visa to the applicant. That decision was handed down on 22 April 2004. 6 On 20 June 2005, the applicant applied to the FMCA seeking judicial review of the Tribunal's decision. 7 As noted, on 5 August 2005, Scarlett FM dismissed that application. 8 On 22 February 2006 the applicant filed the present application for an extension of time in which to file and serve a notice of appeal. 9 The proposed grounds of appeal are set out in a draft notice of appeal attached to an affidavit of the applicant sworn 22 February 2006 and filed on that day in support of the application. The grounds of appeal as stated (irregularities included) are: '1. The honourable judge failed to find error of the law, jurisdictional errors and Procedural fairness and relief under section 39B of the judiciary act 1903. 2. The honourable single judge did not take into account that the applicant have Well-founded fear of persecution on convention reasons.'
legislation 10 Subsection 24(1)(d) of the Federal Court of Australia Act 1976 (Cth) ('the FCA Act') gives this Court jurisdiction to hear appeals from judgments of the FMCA. Subsection 25(1AA) of the FCA Act provides that the jurisdiction of the court in relation to an appeal from a migration judgment of the FMCA is to be exercised by a single judge, or, if a judge considers that it is appropriate for the appellate jurisdiction of the Court in relation to the appeal to be exercised by a Full Court, a Full Court. 11 Subsection 25(2)(b) provides that an application for an extension of time within which to institute an appeal to the Court may be heard and determined by a single Judge or by a Full Court. 12 As noted earlier, O 52 rule 15 provides that a notice of appeal must be filed and served within 21 days after the date of pronouncement of the judgment appealed from, but subrule (2) provides that notwithstanding this provision, the Court or a Judge 'for special reasons' may at any time give leave to file and serve a notice of appeal. 13 Rule 2AA of O 52 provides that an application mentioned in subs 25(2) of the FCA Act must be heard and determined by a single Judge except in the circumstances referred to in that rule (they do not apply in the present case). 14 The meaning of the expression 'special reasons' referred to in O 52 subr 15(2) has been considered in several cases including Jess v Scott (1986) 12 FCR 187, Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894 and Newington v Beneficial Finance Corporation Ltd [2000] FCA 338. I will not attempt to summarise the principles here.
consideration 15 A striking feature about the present application is the long delay in the making of it, and the lack of any explanation for it. As I have already observed, the Federal Magistrate's decision was given on 5 August 2005, and so the 21-day time limit for appeal expired on 26 August 2005, yet the present application was not filed until 22 February 2006. The delay of just under six months is not explained. 16 There were, moreover, earlier delays. There was an initial delay of more than one year between the decision of the Tribunal and the commencement of the judicial review proceeding in the FMCA. Indeed, that application in the FMCA was filed only after the applicant was taken into detention on 9 June 2005. 17 The grounds of appeal are hopeless. I will not summarise either the reasons for the decision of the Tribunal or the reasons for judgment of Scarlett FM. The case was one in which the Tribunal did not find the applicant to be a credible witness. The applicant has provided written submissions to this Court, but these take issue with the conclusions on credit drawn by the Tribunal. The Tribunal gave quite detailed reasons explaining why it did not believe the applicant. The issue of the credibility of his claims was one for the Tribunal and no jurisdictional error is raised in the applicant's submissions.
conCLUSion 18 Both because an appeal would be doomed to fail and because the delay in approaching this Court is not explained, the application for the extension of time should be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.
Solicitor for the First Respondent: Ms. E Palmer of Clayton Utz
SZGOB
Minister for Immigration & Multicultural & Indigenous