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[2008] FCA 279
Federal Court of Australia
2008-03-07
Jessup J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 On 22 February 2008, I dismissed an application for an extension of time to file and serve a Notice of Appeal made pursuant to O 52 r 15(2) of the Federal Court Rules. At the time, I indicated that I would provide my reasons later. These are my reasons for dismissing that application. 2 On 16 August 2007, the Federal Magistrates Court of Australia dismissed an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming an earlier decision of a delegate of the respondent Minister to refuse to grant the applicants protection visas under the Migration Act 1958 (Cth) ("the Act"). The application for judicial review in the Federal Magistrates Court was based upon the following grounds: 1. That the Tribunal exceeded its jurisdiction by failing to assess the Applicant's claim on the basis of information provided, rather than making its own inferences to nullify the applicant's claims of Convention connection for his persecution. 2. That the Tribunal erred in law by its failure to analyse the Applicant's claims as per the criteria laid down in Article 1(A)(2) of the 1951 United Nations Convention. 3. That the [Tribunal] failed to analyse the Applicant's claims in a constructive and consistent manner and thereby failed to consider the Applicant's claims properly and fairly. 3 The applicants were not represented before the Federal Magistrate. The first applicant appeared in person, and sought an adjournment for the purpose of obtaining legal representation. The applicants had previously been legally represented in the Federal Magistrates Court, but their solicitor subsequently withdrew from the case, and their attempts to obtain alternative representation had been only partly successful. According to what the first applicant told the Magistrate, the barrister whom he provisionally engaged had advised him to apply for an adjournment and, if the adjournment were granted, he (the barrister) would act for the applicants on the adjourned date. The Federal Magistrate refused the applicants their adjournment. In doing so, his Honour said that he had undertaken a "close reading" of the Tribunal's decision, and that he was unable to discern any ground upon which it could be successfully argued that the Tribunal fell into jurisdictional error. His Honour said that to grant the applicants the adjournment they sought would be "of no practical use". 4 The applicants were legally represented in this court. Their application for an extension of time was supported by an affidavit by their now solicitor. Exhibited to that affidavit was a draft Notice of Appeal containing three grounds, which I paraphrase as follows:
(3) If the invitation is to give information, or comments or a response, at an interview, the interview is to take place: (a) at the place specified in the invitation; and (b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, a reasonable period. By reg 4.35(3) of the Migration Regulations 1994 (Cth), the period prescribed for the purposes of s 424B(2) was 14 days. It seems, therefore, that the Tribunal was under a statutory direction to require the applicants to respond within a 14-day period. 16 The fourth matter arising under the applicants' second ground was that s 424A(1)(b) of the Act was not complied with in relation to the document examiner's report, in that the applicants were not given to understand why the report was relevant to the review before the Tribunal. At the hearing of the application for leave however, counsel for the applicants accepted that the letter under cover of which the report was provided by the Tribunal on 8 December 2005 sufficiently complied with s 424A(1)(b). 17 Turning finally to the third ground of appeal proposed by the applicants, it is true that the circumstance that an applicant was unrepresented at first instance is something which may be taken into account in considering the question of whether leave should be given to advance grounds on appeal which were not previously taken: see Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788. As will be apparent from my reasons set out above, I approach the present application for an extension of time upon the assumption that the applicants would, in any appeal, be permitted to raise each of the grounds set out in their draft Notice. I did not dispose of their application only by reference to the grounds which they took before the Federal Magistrate. 18 For reasons given above, I took the view that none of the grounds upon which the applicants wish to rely in their proposed appeal would have any realistic prospect of success. An extension of time would, therefore, be of no utility. The conduct of an appeal on the grounds proposed by the applicants would, in my assessment, be a fruitless expenditure of resources, time and money by all involved. 19 For the foregoing reasons, the applications for an extension of time had to be dismissed. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup.
SZISS
Minister for Immigration & Citizenship
(1986) 12 FCR 187