SZJIA v Minister for Immigration and Citizenship

FINDINGS 10 Order 52 rule 15(1) of the Rules provides that a notice of appeal is to be filed and served within 21 days after the judgment appealed from was pronounced. However, pursuant to O 52 r 15(2) the Court or a Judge 'for special reasons' may grant leave to file and serve a notice of appeal out of time. 11 It has been recognised that 'special reasons' require an applicant to demonstrate that there is a special justification for the Court granting leave. In Jess v Scott and Others (1986) 12 FCR 187 at 195 the Court said of the grounds necessary to be established before leave will be granted: Such a ground is a special reason because it takes the case out of the ordinary. We do not think the use of the expression "for special reasons" implies something narrower than this.

12 In considering whether 'special reasons' exist, the Court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the Court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349; Parker v The Queen [2002] FCAFC 133. 13 However, the Court also notes that Raphael FM's decision was interlocutory as his Honour dismissed the applicant's application for want of jurisdiction under s 477 of the Act. Accordingly, leave of the Court is also required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') since there has been no final determination of all the rights of the parties at issue in the proceedings: see Cubillo and Another v The Commonwealth (2001) 112 FCR 455 at [182]; Computer Edge Pty Ltd and Another v Apple Computer Inc and Another (1984) 54 ALR 767. 14 The test which has been frequently applied in determining whether leave should be granted from an interlocutory decision is that referred to in Decor Corporation Pty Ltd and Another v Dart Industries Inc (1991) 33 FCR 397 at 398-399. The test requires the Court to consider whether the decision in respect of which leave to appeal is sought is attended by sufficient doubt to warrant its reconsideration and whether substantial injustice would result if leave were refused, supposing the decision to be wrong. 15 Although the applicant has not filed any application seeking leave to appeal from the interlocutory judgment of Raphael FM, he has referred to the requirement for leave under s 24(1A) of the Federal Court Act in his affidavit sworn on 29 February 2008. The Court will accordingly treat the current application before the Court as being both an application for leave to extend time and an application for leave to appeal from the interlocutory decision of Raphael FM.

Leave to extend time to file and serve notice of appeal 16 The first respondent did not submit that any undue prejudice had been incurred as a result of the delay of the applicant in filing his application. The Court accordingly concludes that the first respondent would not suffer any undue prejudice should the Court grant leave to the applicant to file his notice of appeal out of time. 17 In considering the merits of the applicant's application, the Court finds that, insofar as the applicant challenges the findings of the Tribunal, no apparent error is present in the Tribunal's findings which could lead to a different result if leave to appeal were granted. Further, the draft notice of appeal raises no issue of law but alleges deficiencies in the factual findings of the Tribunal. The Court notes that it would have no power on appeal to substitute its own findings of fact for those of the Tribunal: see NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]; Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 391-392; and Minister for Aboriginal Affairs and Another v Peko-Wallsend Limited and Others (1986) 162 CLR 24 at 40-42 18 However, in considering the merits of the substantial application, the Court must also consider the applicant's submissions relating to his notification of the Tribunal decision, namely that he has not yet received a copy of the Tribunal's reasons. 19 Raphael FM observed that the Tribunal satisfied the requirement of notifying the applicant of the Tribunal decision as required by s 430D of the Act and also complied with s 441A of the Act by its method of communicating such decision to the applicant. Section 477(1A) of the Act extant in 2002 required that an application to the Federal Magistrates Court was to be made within 28 days 'of the notification of the decision'. 20 Raphael FM observed that the provisions of s 477 of the Act as amended applied to the application for judicial review before him and accordingly that actual notification was deemed to have occurred on 1 December 2005. His Honour's observation resulted from the operation of Clause 42 of Schedule 1 to Part 2 of the Migration Litigation Reform Act 2005 (Cth) (Act No. 137, 2005) which commenced on 1 December 2005. His Honour said: The applicant was allowed 28 days in which to make his application or, with the approval of the court, a further 56 days making a total of 84 days. The applicant did not apply for the approval of the court for an extension of time under s.477(2) and therefore this application which he made in September 2006 is substantially out of time. The provisions of s.477 are clear. This court has no jurisdiction to entertain the application.

21 Eight months after Raphael FM's decision the Full Court decision in SZKKC relating to 'actual notification' as contained in Clause 42 of Schedule 1 to Part 2 of the Migration Litigation Reform Act 2005 (Cth) was delivered. The Full Court held that 'actual notification' in s 477 of the Act required an applicant to have been personally served with the Tribunal decision and that unless such service is effected, time will not commence to run for the purpose of s 477 of the Act. 22 Based on the decision of the Full Court in SZKKC, Raphael FM's finding that the applicant's application for review was time barred constitutes jurisdictional error. Accordingly, the applicant's submissions relating to the Tribunal's failure to personally serve him with its decision would have reasonable prospects of success on appeal should leave be granted. 23 However, the prospect of success on appeal is a necessary but not a sufficient condition for the grant of leave to file a notice of appeal out of time: see Vu v Minister for Immigration and Citizenship [2008] FCAFC 59 at [14] per Jessup J. In Vu his Honour also said at [14]: It is hard to see how the good prospects of a proposed appeal should of themselves be regarded as constituting "special reasons" for the purpose of O 52 r 15(2).

24 In considering the applicant's explanation for the delay, the Court observes that O 52 r 5(1) of the Rules requires a notice of appeal to be filed and served within 21 days after the date of judgment. Accordingly, the notice of appeal should have been filed and served by 14 December 2006. The application for leave to appeal out of time was not made until 29 February 2008, being a delay of over 14 months. The Court is unable to accept the applicant's claim that he could not take steps to file his appeal from the decision of Raphael FM within the time prescribed by the Rules. The Court finds that the applicant's explanation for his delay is not satisfactory. 25 The Court considers that the circumstances of the case do not justify a departure from the usual rule that a notice of appeal must be lodged within 21 days of the decision appealed from. The length of the applicant's delay in filing an appeal and the inadequacy of his explanation for such delay leads the Court to conclude that the applicant has not established the 'special reasons' necessary to justify the grant of an extension of time in which to appeal.

Leave to appeal from interlocutory decision 26 In considering whether leave should be granted to appeal from the interlocutory judgment of Raphael FM, notwithstanding the existence of doubt in respect of his Honour's finding in view of the subsequent decision of the Full Court in SZKKC, the Court is not satisfied that substantial injustice would be caused to the applicant, assuming the decision of Raphael FM to be wrong. 27 The power of the Court to grant leave pursuant to s 24(1A) of the Federal Court Act, and to grant an extension of time in which to appeal, is discretionary. Even if a possible error exists in the decision appealed from, the Court may refuse discretionary relief if the conduct of the applicant is inconsistent with the exercise of such discretion. In this regard the Court respectfully adopts the reasoning of McHugh J in SAAP and Another v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 at [80]. 28 The applicant delayed for four years before seeking to challenge the Tribunal's decision in the Federal Magistrates Court, and after Raphael FM delivered his decision a further 14 months elapsed before the applicant applied to this Court. The Court considers that the delay of the applicant in pursuing his review proceedings precludes the Court from exercising its discretion to grant leave. As the Full Court's decision in SZKKC was handed down eight months after Raphael FM's decision, the jurisdictional error contained within the latter as a result of SZKKC only exists because of the applicant's delay in appealing. The Court considers that the applicant's unexplained and inordinate delay is inconsistent with the exercise of the Court's discretion to grant leave (see SAAP at [80] per McHugh J). Accordingly the Court declines to exercise its discretion in favour of the applicant. 29 It follows that the application for leave to bring the appeal out of time pursuant to O 52 r 15(2) of the Rules and leave to appeal pursuant to s 24(1A) of the Federal Court Act is dismissed with costs. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

Associate: Dated: 6 August 2008 Counsel for the Applicant: The Applicant appeared in person