SZKHU v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 This is an application seeking an extension of time to file and serve a notice of appeal from judgment and orders given by Barnes FM on 30 October 2007. The present application was filed on 18 February 2008, some 90 days after the 21 days prescribed by the requirements of O 52 r 15 of the Federal Court Rules. 2 The application for an extension of time is opposed by the Minister for Immigration and Citizenship, the first respondent to the application. The applicant indicates that the reason for the delay was that while her Honour pronounced judgment on 30 October, it was not until December that he received her Honour's written reasons. 3 Even if that were a sufficient reason for the delay between 30 October and December, the fact is that it was not until 18 February, again more than the 21 days referred to by the rule, that the applicant filed his application for an extension of time. I propose to consider the question of an extension of time in the context of whether there is any prospect of a successful appeal. 4 The applicant is a citizen of India. He arrived in Australia on 19 May 2000. 5 On 8 May 2001, he lodged an application for a protection visa which was refused by a delegate of the first respondent on 30 May 2001. 6 On 19 June 2001, he applied to the Tribunal for a review of that decision and the Tribunal on 4 March 2003 affirmed the decision of the delegate. 7 On 6 March 2007, the applicant filed an application for review of the Tribunal's decision in the Federal Magistrates Court. On 4 April 2007, Driver FM dismissed the application on the basis that it was out of time. 8 The applicant then applied to the Federal Court for review of that dismissal, and on 3 August 2007 Lindgren J allowed the appeal having regard to the decision of the Full Court of the Federal Court in Minister for Immigration and Citizenship v SZKKC (2007) 159 FCR 565. The judgment of the Full Court of the Federal Court in SZKKC was handed down on 12 July 2007, which was subsequent, of course, to the dismissal by Driver FM on 4 April 2007. The matter accordingly was remitted by Lindgren J to the Federal Magistrates Court for redetermination. 9 On 30 October 2007, Barnes FM heard the appeal and following the hearing, her Honour delivered an ex tempore judgment dismissing the application. As I have indicated, on 18 February 2008, the applicant applied to this Court for review of the decision of Barnes FM. 10 The draft notice of appeal contains three grounds: (1) The single judge of the Federal Magistrates Court in his Honour's judgment delivered on 30 October 2007 failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth). (2) The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. (3) The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. 11 The reference to Randhawa is misconceived. That decision, a decision of the Full Court, constituted by Black CJ, Beaumont and Whitlam JJ, concerned the application of the internal relocation principle "to refugee law in Australia." That principle was not of any application in the present matter. Rather, the Tribunal found that the applicant's claims could not be substantiated, and, as a consequence, the applicant did not have a well founded fear of persecution. 12 Accordingly, the decision of Randhawa and as a consequence, the third ground, has no application here. That is referred to by Barnes FM in her reasons where she said at 31: 31. … The claim that the Tribunal failed to consider the test under s.91R(2)(a) of the Act in relation to relocation does not establish jurisdictional error. The issue of relocation did not arise. The Tribunal was not able to be satisfied on the inadequate evidence before it and in the absence of a hearing. 13 As I put to the applicant orally in the hearing of this application, the only material in support of his proposed appeal is to be found in his affidavit filed with the application. That in turn really makes reference to a small number of points, none of which provides any confidence of a successful appeal. In particular, the applicant said: (3) I filed Judicial review application before the Federal Magistrate. Honourable FM did not consider my application. I am not satisfied with the order. The FM pronounces his dismissal order at motion date. I was unrepresented, no barrister or solicitor assisted me. (4) I require extension of time and serve notice of appeal against the Federal Magistrate order. (5) I could not apply in time because I have not received the decision in due time. 14 The only possible error that might have been advanced concerning the conduct of the Tribunal in dealing with the application to it by the applicant concerns an assertion of denial of natural justice. That matter was dealt with comprehensively by Barnes FM. 15 I refer particularly to what her Honour said at paragraphs 20 to 23 of her Honour's reasons: 20. Nor is there anything in the material before the Court to support the claim that the Tribunal breached the rules of natural justice. In that respect counsel for the first respondent addressed, and I have considered, whether any issue arose from the rescheduling and postponement of the Tribunal hearing. First, no issue was taken as to whether or not the applicant received the notification of the Tribunal hearing invitation, nor specifically, with whether it met its notification obligations. In any event I note that the Tribunal wrote to the applicant at the address for service provided in the application for review (as well as to the other addresses which he provided). Consistent with authority considered and discussed in Minister for Immigration and Multicultural and Indigenous Affairs v SZFML [2006] FCAFC 152; (2006) 154 FCR 572 at [76]-[83], where the hearing was rescheduled, notice of such rescheduling must be reasonable. There is nothing before the Court to support any contention that the notice of the rescheduling was not reasonable. I note in that respect the notification of the rescheduling on 14 August 2002 and of the date of the rescheduled hearing by letter of 3 September 2002 (for a date of 13 September 2002). 21. The applicant has not raised any issues, nor is there anything before the Court to suggest that such time was inadequate in the particular circumstances of his case or otherwise unreasonable. No jurisdictional error is established in relation to the Tribunal obligations of notification and its rescheduling of the hearing date. In particular, there is nothing to suggest that there was unreasonably short notice in the sense considered by the Full Court in SZFML at [82]. 22. Furthermore, in relation to the reference to a lack of response to the hearing invitation and the unexplained reference in the Tribunal decision to a letter returned to sender after the date on which the hearing was rescheduled, I note that in Minister for Immigration and Multicultural and Indigenous Affairs v SZFHC [2006] FCAFC 73 at [39] the Full court expressed the view that the Tribunal, having complied with one of the methods prescribed in s.425A of the Act to notify an applicant, was not under a further obligation to search the papers lodged to discover if there might be some other avenue of communicating with the applicant. In fact in this case the Tribunal did endeavour to contact the applicant through the advisor and by telephone contact at the telephone number provided. Even if it made a factual error in its reference to an absence of response to the hearing invitation such error was within jurisdiction, given the Tribunal's notification to the applicant, his failure to appear and the Tribunal's attempts to contact him. 23. Insofar as it is contended that there was a lack of procedural fairness, (or a failure to comply with s.425) that is not established in relation to these circumstances or by the Tribunal proceeding to make its decision without taking further action to enable the applicant to appear before it under s.426A of the Act. 16 Her Honour set out what in fact had been done and the many steps that were taken by the Tribunal to notify the applicant of his opportunity to appear. Notwithstanding those many matters, he did not appear at the time the hearing and the Tribunal in those circumstances concluded that it was unable to accept the applicant's claims, given the lack of evidence and the lack of an opportunity to explore a number of issues with the applicant at an oral hearing. 17 The Federal Magistrate, after a detailed analysis of the other grounds of appeal (contained in [27] to [36] of her Honour's reasons), concluded: No jurisdictional error is established on any of the bases contended for by the applicant. As no jurisdictional error has been established, the application must be dismissed. It is not necessary to address the issue of the Court's discretion in relation to the remedies sought. 18 As I have indicated, there is nothing in the material which has been submitted to this Court that suggests that there was any error, let alone jurisdictional error, by Barnes FM. On the contrary, in a very detailed and comprehensive analysis of the contentions of the applicant, her Honour concluded that there was no jurisdictional error attached to the conduct of the matter by the Tribunal, with the consequence that the application to the Federal Magistrates Court had to be dismissed. Nothing in the affidavit in support of the application to this Court or in anything that might have been said before the Federal Magistrate raises any question of merit in the proposed appeal. The appeal would be doomed to fail. 19 In those circumstances, the application for an extension of time to file and serve a notice of appeal should be dismissed as it would serve no useful purpose to extend time. I order that the application for an extension of time within which to file the notice for leave to appeal be dismissed. 20 I order the applicant pay the costs of the first respondent of and incidental to this application, to be taxed if not agreed. I certify that the preceding twenty (20) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Acting Chief Justice Spender.