SZKUO v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 The Application presently before the Court is an application for an extension of time within which to appeal from a decision of the Federal Magistrates Court delivered on 21 December 2007: SZKUO v Minister for Immigration and Citizenship [2007] FMCA 2073. 2 The Applicant appeared before this Court on the hearing of the Application represented by Counsel. 3 The facts centrally relevant to the Application are within a limited compass. 4 The Applicant is a citizen of the People's Republic of China. He arrived in Australia on 4 September 2000 and applied for a protection visa based upon a fear of persecution in China because of his practice of Falun Gong and participation in demonstrations. 5 The application was rejected by a delegate of the Minister on 18 October 2000 and an application for review by the Refugee Review Tribunal was unsuccessful. The Tribunal's decision was handed down on 26 July 2001. 6 On 22 June 2007 an application was filed in the Federal Magistrates Court. The December 2007 decision of the Federal Magistrate, the subject of the present Application, relevantly reached two conclusions, namely: (i) the Tribunal had erred by proceeding to make a decision pursuant to s 426A of the Migration Act 1958 (Cth). That section permits the Tribunal to make a decision where an applicant "does not appear before the Tribunal". The Federal Magistrate accepted that the now Applicant did in fact attend the Tribunal's premises on the date of the scheduled hearing but that he was not called and the Tribunal had thereby erred in proceeding to make a decision without hearing from him; but that (ii) relief should be refused in the exercise of the Court's discretion. 7 In respect to the exercise of discretion, the reasons for decision of the Federal Magistrate were in part as follows: Delay [19] The first respondent submits that, regardless of whether jurisdictional error is demonstrated, the relief sought by the applicant should be denied in the exercise of the Court's discretion because he took unduly long to commence these proceedings. In this regard, it should be noted that the Tribunal's decision was sent to the applicant under cover of a letter dated 26 July 2001 and these proceedings were not commenced until 22 June 2007. In his evidence to the Court the applicant conceded that he had received the Tribunal's decision two to three months after the date which had been scheduled for the Tribunal's hearing (1 March 2001). The applicant also agreed that he had received the decision and its covering letter from the Tribunal. He said that he did read the covering letter but not fully, did not fully understand it and was upset and puzzled. He said that he did not discuss the letter with his agent even though the agent had rung him to say that he too had received a copy of the letter advising of the Tribunal's decision. The applicant said that he did not ask his agent what to do next in relation to his visa status. … [24] It is clear that the Court does have a discretion to deny relief in circumstances where the conduct of the applicant is inconsistent with the application for relief, including where the applicant has been guilty of unwarrantable delay: SAAP v Minister for Immigration Multicultural & Indigenous Affairs (2005) 79 ALJR 1009 per McHugh J at 1026 [80]; Re Refugee Review Tribunal; Ex parte Aala(2000) 204 CLR 82; SZBYR v Minister for Immigration & Citizenship(2007) 81 ALJR 1190 at 197 [28]. This is not a case where the applicant's delay in bringing proceedings is measured in months. It is a delay which is measured in years. The explanation advanced by the applicant for his delay in bringing the proceedings is not credible and I reject it. In his evidence the applicant said that it was through hard work and trying to find information and encouragement from a friend that he became aware of his right to appeal. No explanation was advanced as to why this process matured into an application to this Court only in 2007. Moreover, such evidence is not consistent with the applicant's knowledge that he was denied his hearing before the Tribunal. He knew that he had been invited to appear but had, in fact, been denied the opportunity of so doing. [25] Knowing that he had been denied his hearing and that his application to the Tribunal had been unsuccessful, the applicant should have made enquiries at an early date with a view to enforcing his rights and vindicating his claim to be a refugee. The fact that he did not do so requires an explanation more compelling than that he did not know that he had a right of appeal. [26] But in any event, I have found that he was aware as early as 2001 that if he wished the Tribunal's decision to be set aside he would need to seek judicial review in the Federal Court. He has put nothing before the Court to explain why he did not act on this knowledge. [27] The applicant having given no adequate explanation for the very considerable delay in bringing these proceedings, relief will be denied in the exercise of the Court's discretion. 8 In support of the present Application for an extension of time, two Affidavits were filed. The first was sworn on 12 December 2008 and the second was sworn on 29 January 2009. The Affidavit upon which reliance was ultimately placed at the hearing was one sworn by the Applicant on 4 February 2009. The Respondent relied upon an Affidavit of the instructing solicitor sworn on 6 February 2009. Objection was taken to both Affidavits - but both were admitted subject to the objections taken as to relevance. 9 At the outset of the hearing on 6 February 2009, the deficiency in the factual account as set forth in the February Affidavit was explored with Counsel for the Applicant - that deficiency being that it really set forth no explanation for the entirety of the delay as between January and December 2008. The opportunity was extended to the Applicant to adjourn the proceeding and to file further affidavit evidence and evidence in admissible form. The course ultimately embraced by Counsel for the Applicant, however, was to lead on that date further oral evidence from the Applicant. The Applicant was cross-examined. 10 An extension of time may be granted where an applicant can establish "special reasons": Federal Court Rules 1979 (Cth) O 52 r 15(2). The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties: WAAD v Minister for Immigration and Multicultural Affairs [2002] FCAFC 399 at [7]; Applicant S1138 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1052 at [11]; SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 at [10]. An applicant, it has been said, must advance a reason to take "the case out of the ordinary": Jess v Scott (1986) 12 FCR 187 at 195. The rule confers "a flexible discretionary power": (1986) 12 FCR 187 at 195. Even where "special reasons" can be established, the Court thus retains a discretion to grant or refuse the extension sought: Kordatos v Sweeney [2004] FCA 1487 at [17] per Cooper J. So much is apparent from the terms of r 15(2) itself - "… the Court or a Judge for special reasons may at any time…". 11 Of relevance to the exercise of the discretion, but never conclusive, is the fact that many applicants seeking to challenge adverse decisions made under the Migration Act 1958 (Cth) are not fluent in English and frequently are not represented by legal advisers: cf Vranic v Chief Executive Officer, Centrelink [2004] FCA 1511. And when represented by (for example) counsel appearing on a pro bono basis, the Court is considerably benefited: SZKJV v Minister for Immigration and Citizenship [2008] FCA 831 at [13] to [14]. Also of relevance, but again not conclusive, may be the financial circumstances confronting an applicant: cf QAAH v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7]; SZKDC v Minister for Immigration and Citizenship [2008] FCA 164 at [12]. 12 The present Application for an extension of time should be dismissed for either of two reasons. 13 First, had the Applicant wished to appeal from the decision of the Federal Magistrate, any such Notice of Appeal should have been filed in January 2008. The Application seeking an extension of time was not filed until 12 December 2008. The Affidavit initially filed in support of that Application provided no real explanation for the delay that occurred between January and December 2008 other than the following statement: [6] I missed the time limit of appealing with this court because when I was outside VIDC I couldn't afford to pay the filing fee; and about one month after that I surrendered myself to the immigration department and have since then been penned here at VIDC, waiting for the ministerial intervention of my request. 14 The reference to "VIDC" is a reference to the Villawood Immigration Detention Centre. Not surprisingly, that was not the Affidavit relied upon at the hearing. The Affidavit as ultimately relied upon seeks to remedy this deficiency. The Affidavit as sworn in February 2009 advances an account as to the present Applicant approaching the Registry of this Court in January 2008. Some errors in the documents then sought to be filed were corrected and his attention was then directed by an officer within the Registry as to the requirement of a filing fee. He informed the Registry officer that he could not afford to pay the fee and inquiries were then made as to his circumstances. He maintains that he was reluctant to answer these inquiries because he did not want to expose his friends who were supporting him to "a heavy fine resulting from financing an illegal and would be too much for them to bear". Those inquiries, on his account, were directed to his capacity to pay the filing fee and to how he was otherwise surviving on a day-to-day basis if he were impecunious. After the events which are said to have occurred in January 2008, the Applicant's Affidavit does not set forth any event prior to April 2008 when he was detained at the Villawood Immigration Detention Centre. He continues to maintain that there has been a failure on the part of the Registry of this Court to "properly assess" his situation and a failure in a "duty of care". 15 At the outset, it was contended on behalf of the Applicant that he "simply didn't know that having been refused the ability to file that he could then go back and seek review of that in the Federal Court and seek an extension of time". What was intended to be conveyed by "having been refused the ability to file" his appeal was then explored. Counsel on behalf of the Applicant accepted that he would not go so far as to contend that the Applicant had been "prevented" from filing his appeal - but the facts upon which any submission was to be advanced remained far from clear. An opportunity was thus extended to the Applicant to adjourn the proceeding so that a further affidavit could be filed more fully setting forth those facts which constituted the "refusal". 16 No adjournment was sought and Counsel for the Applicant proceeded to call further oral evidence from the Applicant. Such oral evidence as was then adduced did not travel much beyond what had been previously set forth in the Affidavit relied upon. Indeed, much of the oral evidence in chief was only remotely responsive to any question asked of the Applicant by his Counsel. 17 All inquiries made of the Applicant when he attended the Registry seem relevant to the exercise of the discretion to waive compliance with the filing fee otherwise required: Federal Court of Australia Regulations 2004 (Cth) Reg 11(1). That Regulation provides that "…a fee is not payable if it is a fee to which clause 1 of Schedule 3 applies". And Clause 1 of Schedule 3 provides in part as follows: A fee is not payable in relation to a proceeding if: … (d) the person otherwise liable to pay the fee being an individual, the Registrar or an authorised officer, having regard to the income, day to day living expenses, liabilities and assets of the individual, waives payment because, in the opinion of the Registrar or authorised officer, payment would cause financial hardship to the individual … Other than a decision apparently being made that the filing fee was not to be waived, there is no other basis upon which any conclusion could be reached that the Applicant was "refused the ability to file" his appeal in January 2008. 18 The further oral evidence established - at best - that the Applicant believed that his case before this Court was "closed" after the exchange with the officer of the Registry in January 2008. 19 The further oral evidence also sought to supplement the deficiency in the affidavit evidence as to an explanation for the entirety of the delay as between January and December 2008. The Applicant's oral evidence was that after January 2008 he did not discuss the prospects of further pursuing any avenue of appeal in this Court until November 2008. He did discuss the prospects of seeking Ministerial intervention in April and June 2008 - but, on his account, not the prospect of further invoking the jurisdiction of this Court. Cross-examination of the Applicant sought to establish (inter alia) that the Applicant deliberately refrained from invoking this Court's jurisdiction until after the Applicant had knowledge that the Minister was not going to intervene. 20 Notwithstanding the calling of further oral evidence, there remains an absence of any real explanation for the whole of the delay. Any discretion, it is considered, should be exercised against the Applicant. Any explanation which is put forward as an explanation for delay must set forth an explanation for the entirety of the delay; an explanation for only part of the delay may normally be regarded as insufficient: QAAH v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 9 at [7]; SZKSM v Minister for Immigration and Citizenship [2008] FCA 632 at [20]; SZGND v Minister for Immigration and Citizenship [2008] FCA 680 at [22]. There must be an explanation "for the whole of the delay": SZKTN v Minister for Immigration and Citizenship [2008] FCA 633 at [19]. 21 In the exercise of this discretion, some Judges have embraced the proposition that "…in the case of asylum seekers, this court will be circumspect about being too rigorous in applying the normal principles of judicial review in relation to delay because the court appreciates that to refuse an application for [permission] to apply for judicial review solely on the grounds of delay may have very grave consequences for the asylum seeker": R v Secretary of State for the Home Department; Ex parte Ahmad [1999] Imm AR 356 at 357 per Lord Woolf MR. These observations have been applied by Finkelstein J in Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [5], 85 ALD 532 at 535. And in some circumstances, the Full Court has observed that in refugee cases leave to appeal out of time will "ordinarily" be granted: N1202/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 403, 68 ALD 21. Lee, Moore and Madgwick JJ there observed: [12] In the present case although the delay involved is a period of two months, it is to be borne in mind that leave is sought by a person: who is an applicant for refugee status; who does not understand English; who is not familiar with the legal system of this country; and, who, at all material times, has been interned in a detention centre without legal representation. It may be concluded, therefore that in those circumstances "special reasons" have been demonstrated and given that the Minister will not be prejudiced if leave is granted, leave to appeal out of time, ordinarily, would be granted. Reservation may be expressed as to whether refugee cases fall into any special or separate category of case or whether the gravity or consequences of refusing an extension of time must be taken into account in all cases. In those cases where applicants are bona fide seeking asylum, it may well be that the gravity of the circumstances they confront may be a very real reason for granting the extension sought. The observations of the Full Court, it is considered, should not be understood as denying the discretion conferred by O 52 r 15(2) or indicating that any particular exercise of discretion should proceed otherwise than upon the basis of all of the relevant facts presented in any individual application. Those observations of the Full Court must also be understood to have been made in the context where there was an explanation for the entirety of the period for which the extension was there sought and where that extension was for a period far shorter than in the present proceeding. 22 However the Application may be approached, there remains no acceptable explanation for the delay that has occurred as between January and December 2008. A mistaken belief on the part of the Applicant that the events in January 2008 foreclosed further access to this Court cannot - in the present circumstances - be considered "special reasons". 23 Even on the account most favourable to the Applicant there is thus no acceptable explanation for the delay that has in fact occurred. There is, however, reason to question that account. Notwithstanding his evidence to the contrary, it is considered highly unlikely that he did not discuss his ability to again approach this Court with either a refugee advocate or a solicitor with whom he had made contact in mid-2008. On his account, a refugee advocate visited the Villawood Detention Centre and introduced him to a solicitor. But the solicitor, on his account, did not say "anything in relation to the court proceedings" and only advised him about writing to the Minister. 24 His evidence is not accepted. It is considered that the Applicant, when giving evidence, was astute in only providing those answers he knew to be favourable to his case. Another instance of his providing only such evidence arose when asked as to how he came to "find about lodging the appeal in this Court". The immediate answer was not directed to how he came to find out about his ability to approach the Court; the answer was directed to when he came to find out. And that answer was "the end of October". But that answer was immediately corrected to "around November last year". It is equally incredible that the Applicant on his account never spoke to any of the other persons detained at the Villawood Detention Centre who spoke his language. On his account "I didn't mention my case to anybody". This rejection of his evidence only further undermines the Applicant's case that an explanation has been provided for the whole of the delay. It is considered that he did in fact have knowledge that he could approach this Court by at least mid-2008, but deliberately refrained from approaching the Court until he was advised that his request for Ministerial intervention was unsuccessful. 25 The second reason for refusing an extension of time is that it is not considered that any appeal would have sufficient prospects of success to warrant the discretion being exercised favourably to the Applicant. 26 Subject to one reservation, there is no discernible error in the manner in which the Federal Magistrate exercised his discretion. His Honour considered the evidence then before him. The Applicant was cross-examined. Some of the evidence given was characterised by the Federal Magistrate as "not credible". His Honour proceeded to exercise his discretion upon the basis of the entirety of the evidence and in full knowledge of his earlier conclusion that there had been jurisdictional error on the part of the Tribunal. Although others may well have exercised the discretion differently on the evidence then available, the exercise of discretion to decline relief was a course open to His Honour. 27 But the reservation, it must be accepted, is of importance. The Federal Magistrate acted upon a concession made by the Applicant that he had received a copy of the Tribunal's decision "two to three months after the date which had been scheduled for the Tribunal's hearing (1 March 2001)". But "the Tribunal's decision was sent to the applicant under cover of a letter dated 26 July 2001". The difficulty of conceding receipt of a letter before it was sent is apparent. A fundamental mistake as to the facts may bring an applicant within House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ. 28 But the reservation, it is considered, should not prevail. 29 The Federal Magistrate had the benefit of the Applicant giving oral evidence and his conclusions were conclusions based upon the entirety of the evidence, including his assessment as to the Applicant's credibility. It may also be queried whether the finding of the Federal Magistrate as to when the Applicant became aware of the Tribunal's decision does indeed expose error. The words employed by the Magistrate suggest error - but the contradictory findings are made within the one paragraph of his reasons. It is most likely that the error simply exposes an error in transcription rather than such a fundamental misunderstanding as to the facts as now sought to be attributed to him by the Applicant. 30 To further support the contention that the Federal Magistrate's decision is attendant with doubt, and to rebut the submission that the extension should be refused because an appeal would be futile, Counsel for the Applicant foreshadowed that on appeal he would seek to adduce further evidence confined to the date upon which the Applicant's migration agent ceased business. That date was also of relevance to the time at which the Applicant became aware of the Tribunal's decision. The Applicant's February 2009 Affidavit is also a precursor, should the extension of time be granted, to a more broadly based challenge to the evidence given before the Magistrate. That Affidavit states (without alteration) in part: [23] In giving incorrect evidence at Federal Magistrates court I now believe I was confused and in fact recalling, not the letter from the RRT, but the letter I had received from the minister's delegate some months earlier in October 2000 advising of refusal of my Protection Visa application. … 31 If an extension of time within which to appeal to this Court were granted, the appeal pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth) would be by way of rehearing: Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833, 117 FCR 424. And, on appeal, the Court would have a discretion to admit further evidence pursuant to s 27 of the 1976 Act. 32 It is, however, unlikely that the discretion conferred by s 27 would be exercised in favour of the now Applicant to so fundamentally revisit the evidence previously given. 33 The fact remains that there was inordinate delay as between the date of the Tribunal decision in 2001 and the application for review by the Federal Magistrates Court in 2007. Either for the reasons given by the Federal Magistrate, or by reference to the account now advanced, any decision that the application should be rejected for discretionary reasons remains, it is considered, the correct decision. 34 Relevant to the ultimate conclusion reached by the Federal Magistrate was the conclusion that the Refugee Review Tribunal had committed a jurisdictional error. Even if the discretion were to be exercised afresh by this Court, that conclusion would remain equally relevant. It is proper when exercising the discretion to have regard to the merits of the substantive application sought to be advanced: Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [14], 85 ALD 532 at 538 per Finkelstein J. 35 But for the Applicant's delay in invoking his rights, he would in all likelihood have obtained relief: R v Ross-Jones; Ex parte Green (1984) 156 CLR 185. Gibbs CJ there observed (at 194) in respect to relief in the nature of prohibition: If therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the court retains its discretion to refuse relief if in all the circumstances that seems the proper course. This has been accepted by Gaudron and Gummow JJ as "the correct approach to the exercise of the original jurisdiction in matters in which a writ of prohibition is sought against an officer of the Commonwealth under s 75(v) of the Constitution": Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 at [51], 204 CLR 82 at 106. 36 The Applicant has availed himself of his right to seek review by the Federal Magistrates Court and that Court, in the exercise of an admitted discretion, refused him relief. He has now been given the opportunity to again explain his circumstances and the reasons for his delay in a number of Affidavits filed in this Court and the opportunity to give oral evidence. Notwithstanding the finding as to jurisdictional error on the part of the Tribunal, it is considered that an extension of time should be refused. Rather than pursuing an application to this Court, he refrained from doing so and sought intervention by the Minister. The delay in bringing the application does not constitute "special reasons" within the meaning of O 52 r 15.