SZMOQ v Minister for Immigration & Citizenship

REASONS FOR JUDGMENT 1 The applicant in this matter has applied for an extension of time in which to file and serve a notice of appeal against the judgment and orders of the Federal Magistrates Court (Raphael FM) dated 30 October 2009: SZMOQ v Minister for Immigration & Anor [2009] FMCA 1086. 2 By O 52 r 15(1)(a) of the Federal Court Rules 1979 ('the Rules'), the time permitted to file a notice of appeal is 21 days from the date of the judgment. This period therefore ended on 20 November 2009. The application for an extension of time was filed on 24 November 2009. The delay is not great. 3 Pursuant to O 52 r 15(2), the time limit may be extended 'for special reasons'. In Jess v Scott (1986) 12 FCR 187, the Full Court discussed the principles surrounding 'special reasons' and said at 195 that: '[T]he 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.' 4 A special reason has been articulated as a circumstance which 'take[s] the case out of the ordinary': Vu v Minister for Immigration & Citizenship (2008) 101 ALD 211 at [5]. Furthermore, any claimed explanation for the delay in bringing proceedings must explain the entirety of the period of delay; an explanation for only a part of the delay does not suffice: QAAH v Minister for Immigration & Multicultural & indigenous Affairs [2004] FCAFC 9 at [7]; SZLXR v Minister for Immigration & Citizenship [2008] FCA 1897; SZKTN v Minister for Immigration & Citizenship [2008] FCA 633 at [19], applied in SZKUO v Minister for Immigration & Citizenship [2009] FCA 93 at [20]. 5 In an affidavit attached to the application for an extension of time (sworn on 24 November 2009) the applicant claims that he did not realise that the time period for appeal commenced from the date of the decision. He claims that he thought the time period would run from 6 November 2009; the date he allegedly received a written copy of the learned Federal Magistrate's judgment and orders. 6 The first respondent ('the Minister') submitted that this is not a sufficient explanation for the delay; the applicant conceded that he received the published reasons for the decision on 6 November 2009 but did not explain why he waited until 24 November 2009 to file and serve any pleadings. Furthermore, the Minister submitted, the onus was on the applicant to ensure compliance with the applicable statutory time period of 21 days. According to the Minister, it is not acceptable for an applicant to fail to make proper inquiries to determine when his or her appeal is required to be lodged: SZLIH v Minister for Immigration & Citizenship [2009] FCA 108 at [33] per Cowdroy J. 7 I do not agree with these submissions. The delay of four days is not great and the basis of the delay - that time would only run from the time the applicant received a written copy of the Federal Magistrate's reasons and orders - is, in the case of a self-represented, unqualified litigant who does not speak English, totally comprehensible. However, this is not the only consideration I have to take into account. 8 The draft notice of appeal proposes one ground of appeal which ultimately alleges that the Tribunal and learned Federal Magistrate 'failed to consider the basic facts'. 9 In determining whether special reasons exist to grant an extension of time, it is necessary to consider the applicant's prospects. A similar power of a justice of the High Court to grant an extension of time was referred to in Gallo v Dawson (No 2) (1992) 109 ALR 319 where the High Court endorsed the following statement of principle enunciated by McHugh J at first instance (see Gallo v Dawson (1990) 93 ALR 479 at 480): 'The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal.' (Citations omitted) 10 The sole ground of the draft notice of appeal merely amounts to a request for merits review. It is well established that this Court cannot review the merits of the Tribunal's decision, and it is the Minister's submission that the learned Federal Magistrate did not make any appellable error in this regard. The Minister therefore submitted that the draft notice of appeal had no prospects of success, and that the application for an extension of time should be refused accordingly. 11 I agree.