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[2008] FCA 158
Federal Court of Australia
2008-02-26
Kenny J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application for an extension of time in which to file and serve a notice of appeal from a judgment of the Federal Magistrates Court of 18 October 2007. The application before the Federal Magistrates Court sought judicial review of a decision of the Refugee Review Tribunal ('the Tribunal') handed down on 7 September 2006. 2 The applicant, a former resident of Jordan, of Palestinian background, arrived in Australia on 3 October 1997. He lodged an application for a protection visa on 22 January 2003. A delegate of the first respondent refused the application for a protection visa on 25 March 2003. On 15 April 2003, the applicant applied to the Tribunal for a review of that decision. The Tribunal's decision was adverse to the applicant and the applicant sought judicial review in the Federal Magistrates Court. The applicant sought judicial review of the Tribunal decision in the Federal Magistrates Court. On 15 May 2006, the Federal Magistrates Court, by consent, set aside the Tribunal's decision and remitted the matter. In a decision handed down on 7 September 2006, the Tribunal, differently constituted, affirmed the delegate's decision to refuse the applicant a protection visa. This decision was unsuccessfully challenged in the Federal Magistrates Court.
The Tribunal's decision 3 The applicant claimed to have a well-founded fear of persecution on the ground of political opinion. He claimed to fear harm from the Jordanian authorities and from Hamas for his past involvement in Hamas. The applicant claimed that he became involved with Hamas in secondary school, during which time he was tortured, detained, and expelled from school for making speeches on the radio. The applicant also claimed that he had criticised the Jordanian Royal family. After the signing of the peace treaty between Jordan and Israel in 1994, he claimed to have been arrested for distributing a pamphlet issued by Hamas, and to have been tortured and jailed for about a month and released due to poor health. He was forced to sign a document stating that he would stop all activities for Hamas. 4 The applicant, however, continued his activities and protests, and recruited new members to Hamas' political wing. The applicant claimed that his father had close contact with Hamas leaders. The applicant claimed that Jordanian intelligence prevented him from going to university and that he was arrested in 1997 for being a Hamas member. The Jordanians asked him to be an agent for them within Hamas, but the applicant ceased his Hamas activities when members were discussing suicidal military actions, as he opposed killing innocent civilians. He claimed that he was later attacked by masked members of Hamas, and was threatened with death if he exposed their activities to authorities. 5 On 27 July 2006 the Tribunal sent a letter to the applicant pursuant to s 424A of the Migration Act 1958 (Cth) ('the Act')inviting him to comment on certain issues. No response was received from the applicant. 6 The Tribunal was not satisfied that the applicant was a credible witness for the following reasons:
THE FEDERAL MAGISTRATE'S DECISION 9 On 5 October 2006 the applicant sought judicial review in the Federal Magistrates Court. The applicant claimed that, on the second occasion, the Tribunal did not give him the opportunity to appear before it; that the Tribunal erred in relying on issues raised before the Tribunal on the first occasion; and that, on the second occasion, the Tribunal failed to consider that the issues raised in the s 424A letter were discussed at the hearing before the Tribunal on the first occasion. 10 The Federal Magistrate referred to SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 ("SZEPZ") at [39] in support of the proposition that there was no obligation on the second Tribunal to conduct a further hearing. Further, her Honour noted that since the applicant made no response to the s 424A letter, by virtue of s 424C(2), the Tribunal could make its decision without taking any further action. In other words, in the absence of a response to the s 424A letter, by virtue of s 424C(2), the Tribunal could proceed to make its decision without taking any further steps. 11 Referring to SZEPZ,her Honour stated that information given before the Tribunal on the first occasion remained available to the Tribunal hearing the matter again on remittal. Her Honour said further that there had been no failure to comply with s 424A and the fact that issues were discussed at a hearing and then addressed in a s 424A letter did not establish jurisdictional error. 12 Finally, her Honour found that there was nothing in the material before her that indicated any failure by the Tribunal to comply with its obligations under the Act despite oral submissions from the applicant at the hearing that he had been experiencing panic attacks at the time of the hearing before the Tribunal as previously constituted. Her Honour noted that the applicant had not raised this issue with the Tribunal. Her Honour could thus find no jurisdictional error and dismissed the application on 18 October 2007.
CONSIDERATION 13 Under Order 52 r 15(1) of the Federal Court Rules, a notice of appeal must be filed within 21 days from the date of judgment. In this case, this period ended on 8 November 2007. The application for an extension of time was filed on 20 November 2007, some 12 days late. Pursuant to O 52 r 15(2), the time limit may be extended for 'special reasons'. In Jess v Scott (1986) 12 FCR 187, a Full Court of this Court said, at 195: "…the expression 'special reasons' is intended to distinguish the case from the usual course according to which the time is twenty-one days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify departure from the general rule in the particular case. 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." 14 In an affidavit accompanying his extension of time application, the applicant claimed that his application was not filed on time as he did not receive the judgment until 8 November 2007. I note that the Federal Magistrate delivered judgment on the day of the hearing, at which time the applicant was present. The applicant explained today, however, that after judgment was delivered, he asked for a copy of the reasons for judgment and was informed that they would be sent to him. This explains why he did not receive a copy of the reasons for judgment until 8 November 2007. I bear in mind that the delay is relatively slight, and I accept the applicant's explanation as correct. I doubt, however, that this is sufficient to meet the special reasons requirement. Even if it was, the applicant has not satisfied me that his appeal has sufficient prospects of success to justify the grant of leave. 15 The applicant did not make any submissions on his proposed grounds of appeal today. I am left with the draft notice of appeal which accompanies the applicant's application. The draft notice of appeal asserts that the Federal Magistrate breached procedural fairness and natural justice requirements, and ignored such breaches by the Tribunal; and that the Federal Magistrate's decision was an improper exercise of power. Elsewhere, the applicant also claims that the Tribunal misinterpreted and misunderstood the applicant's status in Jordan. 16 The applicant provides no particulars of these general statements, which therefore do no advance the applicant's case in any real way. In effect, the draft notice of appeal fails to identify any real occasion of error in the judgment of the learned Federal Magistrate and I can discern none on examination of her reasons. 17 I would therefore refuse the application for an extension of time in which to file and serve a notice of appeal. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.
Date of Hearing: 26 February 2008
Date of Judgment: 26 February 2008
SZJLZ
Minister for Immigration and Citizenship
(1986) 12 FCR 187