SZLBL v Minister for Immigration and Citizenship

Federal Court of Australia|2008-02-29|Before: McKerracher J

The application be dismissed.
The applicant pay the first respondent's costs fixed at $600. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

NEW SOUTH WALES DISTRICT REGISTRY NSD 2150 OF 2007

REASONS FOR JUDGMENT 1 This is an application for extension of time to file and serve a notice of appeal from a decision of aFederal Magistrate(Scarlett FM)made on 3 October 2007 (SZLBL v Minister for Immigration & Anor [2007] FMCA 1752). The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal (the Tribunal) of 25 May 2007. 2 The applicant is a citizen of Bangladesh who applied for a protection visa on 9 March 2007. In his protection visa application, the applicant claimed to have a well-founded fear of persecution from his family and neighbours in Bangladesh for reason of his conversion from Islam to Christianity. The applicant claimed he grew up in an extremist Muslim family but did not believe in all the rules. He felt he needed 'a break' and after advising his family he wanted a better education, travelled to Australia. He claimed that whilst he was in Australia he was introduced to Christianity, attended church and consequently converted to Christianity. The applicant claimed that if he returned to Bangladesh, the authorities in Bangladesh would not be able to protect him as Christians are a minority group. 3 On 11 April 2007 the applicant applied to the Tribunal for a review of that decision. On 19 April 2007 the Tribunal sent a letter to the applicant, addressed to the applicant's address for correspondence as indicated in the application for review, in which it invited him to a hearing scheduled for 22 May 2007. The Tribunal in its decision noted there was no response to its invitation and that the applicant did not appear before the Tribunal on the scheduled date. The Tribunal stated that it proceeded to make a decision in the absence of the applicant pursuant to s 426A of the Migration Act 1958 (Cth) (the Act).

TRIBUNAL'S DECISION 4 The Tribunal found the applicant's claims were vague and that there were no details or evidence in support of the claims. The Tribunal could not be satisfied on the evidence the applicant had a well-founded fear of persecution and affirmed the decision of the delegate.

FEDERAL MAGISTRATE'S DECISION 5 Before the Federal Magistrate, the applicant asserted a number of grounds, including: breaches of the Act under s 424A and s 91R(2)(a); illogicality; and bias. The applicant also claimed that the Tribunal failed to consider the applicant's medical certificate which explained his non-attendance. In support of such a contention, the applicant provided to the Federal Magistrate an original certificate of sickness covering 16 May 2007 until 23 May 2007 from the Waterloo Medical Centre. 6 The Federal Magistrate had regard to the grounds but did not consider the application established jurisdictional error. Amongst other things, his Honour stated the Tribunal did not grant the application because of the inadequacy of information and there was no failure to consider the requirement of s 91R(2)(a) of the Act. In relation to the medical certificate, the Federal Magistrate asserted (at [14] to [15]): I put to the applicant that the certificate of sickness does not give any indication that the certificate is actually for the Tribunal. The applicant explained that he gave the document to his friend and that the friend sent it off to the Refugee Review Tribunal. When asked to comment on an affidavit by Jonathan Christian Willoughby-Thomas, District Registrar of the Refugee Review Tribunal, filed on 20th September 2007 - which indicated that the deponent had searched, amongst other things, the physical RRT file and the computerised case management system, and that his searches revealed that there was no record of the RRT having received a copy of any medical certificate from the applicant; annexed to the affidavit is a print-out from the case management system - the applicant indicated that his friend may have made a mistake, and he had asked a friend to do him a favour. The friend did not attend Court to give evidence nor was an affidavit by this person provided. In the circumstances I am not satisfied that the applicant has provided an explanation, not as to his suffering and illness, because he has provided that, but as to his notification to the Tribunal of his inability to attend due to sickness. The second ground, therefore, must fail.

EXTENSION OF TIME 7 On 30 October 2007 the applicant filed an application for extension of time within which to appeal. The affidavit in support of the extension for time was sworn on 30 October 2007 and materially reads: (4) I require extension of time and serve notice of appeal against the Federal Magistrate order. (5) I am a converted Christian. If I have to go back to Bangladesh, the Muslim extremists will kill me. 8 Order 52 r 15(1)(a)(i) of the Federal Court Rules (the FC Rules) provides that 'the notice of appeal shall be filed and served within 21 days after the date when the judgment appealed from was pronounced'. 9 An applicant seeking leave to file and serve a notice of appeal out of time must demonstrate special reasons for the grant of that leave: O 52 r 15(2) of the FC Rules. Guiding principles of assistance to this Court in considering whether to grant leave were articulated by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 as follows: (a) applications for an extension of time are not to be granted unless it is proper to do so; the legislated time limits are not to be ignored. The applicant must show an acceptable explanation of the delay; it must be 'fair and equitable in the circumstances' to extend time; (b) action taken by the applicant, other than by way of making an application for review, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished; (c) any prejudice to the respondent in defending the proceedings that is caused by the delay is a material factor militating against the grant of an extension; (d) the mere absence of prejudice is not enough to justify the grant of an extension; and (e) the merits of the substantive application are to be taken into account in considering whether an extension of time should be granted. 10 Although the Court has the power to grant the applicant leave to file and serve a notice of appeal under O 52 r 15(2) of the FC Rules, the applicant was present when judgment was pronounced by the Federal Magistrate. He has provided no explanation for the delay in filing a notice of appeal. The applicant has therefore failed to provide any special reasons. 11 Further, the applicant is unable to identify any arguable ground of appeal. It follows that an appeal would be futile. It is well established that leave should not be granted when an appeal would be futile or hopeless. As also observed by Weinberg J in Sallehpour v Frontier Software Pty Ltd [2005] FCA 1206 at [23], the merits of the case are a relevant fact to be considered. Where the grounds of appeal appear hopeless and the applicant is unable to articulate any arguable basis upon which an appeal might succeed, futility weighs strongly against granting an extension of time within which to filed a notice of appeal. It is for the applicant to persuade the Court that there is an arguable case. That onus has not been discharged. 12 On the merits, I would dismiss the application. 13 Additionally, however, the applicant did not appear despite having been given ample notice of the hearing and notification of the correct time and place which the hearing would proceed. The applicant was also given written notice at the same time that should he not appear, the first respondent would move for dismissal of his application in default of his appearance. 14 I was also urged by counsel for the first respondent to dismiss the application pursuant to O 35A r 3(1)(a) of the FC Rules. In those circumstances I am also satisfied that in default of the applicant's appearance, the application should be dismissed.

CONCLUSION 15 Accordingly, the application for extension of time to file and serve a notice of appeal will be dismissed. The applicant is ordered to pay the first respondent's costs fixed at $600. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.

Date of Hearing: 28 February 2008

Date of Orders 28 February 2008

Date of Publishing of Reasons: 29 February 2008

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