SZIFS v Minister for Immigration and Multicultural Affairs

Federal Court of Australia|2006-08-08|Before: Finkelstein J, Cowdroy J

1 The applicant applies for an extension of time to file and serve a notice of appeal from the decision of the Federal Magistrates Court of Australia delivered on 18 May 2006: see SZIFS v Minister for Immigration & Anor [2006] FMCA 753. Order 52 r 15 of the Federal Court Rules requires that a notice of appeal be filed and served within 21 days after the date when the judgment appealed from was pronounced: see O 52 r 15(5)(1)(a)(i). The applicant filed her application for an extension of time on 13 June 2006, together with a draft notice of appeal. Accordingly the applicant lodged her application for extension of time and draft notice of appeal 5 days after the 21 day period had expired.

2 The first respondent does not claim any prejudice to it by reason of the fact that the applicant seeks to bring her appeal out of time. However, it submits that leave would not be granted for discretionary reasons. 3 As a procedural matter, the first respondent has drawn my attention to the fact that the Refugee Review Tribunal was the second respondent in the proceedings in the Federal Magistrates Court and that in view of the observations of the High Court of Australia in SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, the Tribunal should be joined as a party. The Courtconsiders it appropriate to make an order that the Tribunal be joined as the second respondent.

HISTORY OF PROCEEDINGS 4 The applicant, a citizen of China, arrived in Australia on 2 August 2005 and lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs, claiming to have been persecuted in China because of her belief in and practice of Christianity. On 22 September 2005 a delegate of the first respondent refused a protection visa and on 10 October 2005 the applicant applied to the Tribunal for a review of that decision. 5 Whilst the Tribunal considered that the applicant was, on balance, truthful about her experiences in China, it considered that the applicant had not experienced serious harm amounting to persecution by reason of her religious beliefs. Accordingly, the Tribunal refused her application. 6 The applicant appealed the decision of the Tribunal to the Federal Magistrates Court. Scarlett FM heard the applicant's appeal on 18 May 2006. During the hearing the appellant submitted that the Tribunal was subjectively seeking reasons to decide against her rather than considering all of the evidence, and that the Tribunal used country information against her rather than looking at the whole of the facts of her application. The applicant also alleged that the Tribunal did not fully disclose the details of the country information to her. 7 Scarlett FM found that the main basis of the Tribunal's decision was the applicant's own evidence and that any allegation of bias on the part of the Tribunal was not made out. His Honour also noted that the Tribunal was entitled to use country information, and that there was no obligation on the Tribunal to provide particulars of the country information to the applicant.

THE PRESENT APPLICATION 8 Under O 52 r 15(2) of the Federal Court Rules, the Court may grant leave to file and serve an application outside of the prescribed 21 day period 'for special reasons'. In Kweifio-Okai v Royal Melbourne Institute of Technology [1999] FCA 894 Finkelstein J identified three issues for consideration by the Court on an application for an extension of time in which to file an appeal (see at [9]): firstly, the extent of the delay involved; secondly, whether any prejudice to respondent was occasioned by the delay; and thirdly, whether the applicant would suffer a serious injustice if the right to appeal were denied. 9 The respondent has not submitted that it will be prejudiced if the application for leave is allowed, and the delay in this case, of five days, is relatively short. In her affidavit the appellant explained that the delay was due to language difficulties and the need to enlist the assistance of a friend to prepare her appeal. On further questioning at the hearing today, she indicated that she also had been waiting for a letter from the Court, presumably the letter containing the reasons for judgment of Scarlett FM. When the letter had still not been received nineteen days into the appeal period, she rang the Federal Magistrates Court and discovered that the appeal could be lodged without the reasons. Although strictly there is no evidence of this before the Court, I am willing to give the applicant the benefit of the doubt concerning the reasons for the delay. 10 The remaining question is whether the applicant's appeal has any prospects of success. In WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [9] the Court said: '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 …' 11 I have considered the submissions of the respondent which suggest that the applicant's appeal has no prospects of success. Whilst I generally concur that the draft notice of appeal appears to raise the same matters as were considered by the Federal Magistrate, in whose reasons I cannot immediately discern any error, I am mindful that the applicant is unrepresented and that not all of the relevant materials are presently before the Court. Given that no prejudice is alleged and the period of delay is very short, I am not prepared to find that the applicant's appeal has no prospects of success. As the Court noted in WAAD at [7]: '… 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.' 12 Accordingly, I shall grant leave to extend the time for filing an appeal. I certify that the preceding twelve (12) 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.

Counsel for the Respondent: A J Crockett (solicitor)

Solicitor for the Respondent: Australian Government Solicitor

At a glance

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Judgment (7 paragraphs)

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Cases Cited (4)