SZKDC v Minister for Immigration and Citizenship

THE FEDERAL MAGISTRATE'S DECISION 7 On 5 February 2007 the applicant sought judicial review in the Federal Magistrates Court. The applicant claimed that the Tribunal made jurisdictional error as it had failed to exercise its jurisdiction under the Migration Act 1958 (Cth) ('the Act'), and had failed to take into account evidence and relevant considerations. The applicant also sought an extension of time, pursuant to s 477 of the Act, to bring the application. According to the affidavit filed in support of the application for an extension of time, the applicant had delayed making the application until he heard from the Minister in relation to a request for discretionary intervention in his case. 8 The Minister's solicitors filed an objection to the competency of the application, on the grounds that the application was filed outside the standard period of 28 days from actual notification of the Tribunal decision and outside the maximum extendable period of 84 days stipulated in s 477, with the consequence that no extension of time could be granted to allow the application to proceed. The Minister contended that the applicant had received "actual notification" of the Tribunal's decision, for the purposes of s 477, on 6 April 2006. In support of this proposition the Minister relied on the form of the "Checklist for handing down: 6 April 2006" (Folio 40). This indicated that the applicant personally attended the Tribunal and was given a copy of the decision that day. The applicant did not present evidence to contradict this documentary material. 9 On 26 March 2007, the learned Federal Magistrate held that the application was incompetent and dismissed it for want of jurisdiction. His Honour held that, based on the documentary evidence, the applicant had personally attended the Tribunal and received actual notification of its decision on 6 April 2006. His Honour held that the Court had no power to grant an extension of time, given that more than 84 days had passed since the date of actual notification.

Application for an extension of time 10 The applicant filed an application for an extension of time on 8 October 2007. This application is necessary because the applicant seeks to bring an appeal more than 21 days after the Federal Magistrates Court gave judgment. Accompanying the application is an affidavit, although it is not accompanied by a draft notice of appeal. The affidavit states that the application was not filed within time due to "financial problems". It asserts that the Tribunal failed to afford the applicant procedural fairness and, by implication, that the Federal Magistrate erred in failing to so find. In substance, therefore, as the first respondent's counsel submitted, I understand the applicant to be complaining of a lack of procedural fairness which, in turn, challenges the Federal Magistrate's decision that s 477 of the Act operated so as to preclude him from having jurisdiction over the matter.

CONSIDERATION 11 Under O 52 r 15(1)(a) of the Federal Court Rules, the applicant was required to file and serve a notice of appeal within 21 days from the date of the Federal Magistrates Court judgment, namely 16 April 2007. The applicant filed his application for an extension of time in which to appeal on 8 October 2007, 5 months and 22 days outside the prescribed appeal period. An extension of time may be granted but only for 'special reasons': see O 52 r 15(2). In Jess v Scott (1986) 12 FCR 187, a Full Court of this Court held, 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." 12 Generally speaking, the applicant's "financial problems" alone would not provide a sufficient excuse for the delay or justification for an extension of time he seeks: QAAH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7]. 13 Further, an extension of time will not be granted where the prospective appeal has no prospects of success: WAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 399 at [9]. But for one matter, the prospects of success on this appeal would appear to be very low indeed. As already noted, the Federal Magistrate made the critical finding of fact that the applicant received "actual notification" of the Tribunal decision on 6 April 2006. 14 In this Court, however, the first respondent submitted that there were two other documents that bore on the question, both of which were included in the Court Book filed in the Federal Magistrates Court prior to the hearing of the notice of objection to competency. The first respondent noted that it was nonetheless unclear whether they were part of the evidence before his Honour and invited the Court, if necessary, to receive them into evidence under s 27 of the Federal Court of Australia Act 1976 (Cth). The first respondent referred to CDJ v VAJ (1998) 197 CLR 172 at 201-202 and SZGPB v Minister for Immigration and Multicultural Affairs [2006] FCA 573 in support of this course. I will proceed on the assumption that neither of these two documents was tendered in evidence before his Honour. This is consistent with the fact that he did not refer to either document in his judgment. 15 The first of the documents in question formed 'Folio 39' on the Tribunal's file. Folio 39, which was headed "Handing down information form" and dated 6 April 2006, discloses a signature in the section headed "Acknowledgement of receipt of documents" on the line for "authorised recipient". Since the applicant did not have an authorised recipient for the purposes of his Tribunal application, this was apparently an erroneous entry. The first respondent also drew the Court's attention to Folio 42 ("Requests for information/documents"). This document bears signatures that, as the first respondent submitted, "seem to be the signature of the applicant". This might indicate that the applicant received a copy of the decision at the Tribunal counter on 2 February 2007, although I accept, as the first respondent submitted, that "the signatures are inconclusive in terms of identifying the person who took delivery of the decision on 6 April 2006". 16 It suffices to say that I am not persuaded that this other documentary material would have produced a different finding of fact and therefore a different result had the Federal Magistrate referred to it. The documents just mentioned are of equivocal significance. Against this, the "Checklist for handing down: 6 April 2006", on which his Honour based his decision, is a contemporaneous record indicating that the applicant attended the handing down and a copy of the decision was given to him. Furthermore, the applicant has not sought to contradict, by evidence or submission, the proposition that he received a copy of the Tribunal decision on 6 April 2006. 17 Two other matters should be noted. First, the applicant did not attend the hearing today. Perusal of the Court file indicates that the Court sought to notify the applicant by two letters dated 6 December 2007 and 12 December 2007 that his application would be heard today at this time and in this place. There is also one other document on the Court file that was also apparently sent to him and that would have acquainted him with the date, time and location of the hearing. Furthermore, the first respondent filed in Court today an affidavit of service of documents on the applicant to the effect that, on 22 February 2008, the first respondent's representatives duly sent him notice of the date, time and place of today's hearing together with the first respondent's submissions. 18 In view of this, it appears that the applicant would have received adequate notice of the hearing today. He has not sought any postponement of the hearing, and nor has he advised the Court of any difficulty in attending the hearing today. Accordingly, I proceeded with the hearing in the applicant's absence pursuant to O 52 r 38A(1)(d) of the Federal Court Rules. The first respondent filed written submissions prior to the hearing today and, relying on those submissions, pressed for an order dismissing the appeal. 19 Secondly, although nothing apparently turns on the point, I note that there is some authority for the view that the judgment of the Federal Magistrates Court was interlocutory in character, and if this is correct, then there could be no appeal unless the Court were to grant leave to appeal: see Federal Court of Australia Act 1976 (Cth), s 24 (1A). The applicant would require an extension of time in which to make such an application. Substantially for the reasons already given, I would not grant such an extension as the application for leave would be unlikely to succeed. 20 I am not persuaded that the Federal Magistrate erred in finding that the applicant received actual notification on 6 April 2006. I can discern no other possible error in his Honour's judgment. Accordingly, I would refuse the application for an extension of time. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.